Kapok Tree Diplomacy

The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy

“The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” Dwight D. Eisenhower (qtd. in Ferencz 288)

Introduction

The remarkable ascent of international criminal law over the past two decades has had, and continues to have, a profound impact on the laws of war, humanitarian and human rights laws, and existing international institutions like the United Nations (UN). The global community took a giant step towards holding the perpetrators of the most serious international crimes accountable to the rule of law by adopting the Rome Statue of the International Criminal Court on July 17, 1998.

Bringing the violators of these serious crimes to justice, however, has proven to be easier said than done. The International Criminal Court (ICC) has encountered numerous practical and conceptual obstacles in its efforts to become an impartial and effective instrument of justice. Some commentators like Brett Schafer and Steven Groves believe the ICC is so deeply flawed that it even violates international law in addition to threatening state sovereignty (1).

The paper seeks to review the history, structure and effectiveness of the ICC, including its recent agreement on a definition for the Crime of Aggression. I will specifically examine practical objections to the ICC, its conceptual challenges, its evolving role in matters of peaceand justice, and how it is challenging the traditional role of the UN Security Council (UNSC). The ICC’s jurisdictional reach will be examined in detail as well as its procedural safeguards. Finally, I’ll review some ways the United States can effectively cooperate with the ICC as a non- party partner while simultaneously advancing its foreign policy and national security interests and resisting the trend in international law towards pooled sovereignty and global governance.

The views and opinions expressed in this paper are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Section One – History, Structure and Mandate of the ICC

Background. The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with “a supreme offense against international morality and the sanctity of treaties,” a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed “individual culpability for crimes against peace” following World War II by indicting several senior officials in a multinational setting (Fletcher 235). The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4).

In 1974, the UN General Assembly finally defined and codified aggression in G.A. 3314 as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations” (Fletcher 238). This definition includes a non-exhaustive list of aggressive acts and allows the UNSC to determine if an act does not have “sufficient gravity” to meet the definition (United Nations G.A.). This definition, although deemed “too political and legally imprecise” for the ILC, would become the foundation for the ICC definition of the crime of aggression (Fletcher 239 and “RC/Res.6”).

Following a request from Trinidad and Tobago to consider an international criminal court for drug trafficking issues, the General Assembly convened a diplomatic conference in 1994 to draft the treaty that was finally adopted on July 17, 1998 (Dunoff, Ratner, & Wippman 658). The Rome Statute of the International Criminal Court, hereinafter referred to as “Statute,” became law with 60 ratifications on July 1, 2002 and is now joined by 111 states (ICC “About”). The ICC negotiations were very contentious as states sparred over jurisdictional consent, the independence of the prosecutor, the role of the UNSC, and complementy issues (Dunoff, Ratner, & Wippman 658-9).

The chief U.S. negotiator, David J. Scheffer, acknowledged: “In Rome, we indicated our willingness to be flexible … Unfortunately, a small group of countries, meeting behind closed doors in the final days of the Rome conference, produced a seriously flawed take-it-or-leave-it text, one that provides a recipe for the politicization of the court and risks deterring responsible international action to promote peace and security” (1998).

The United States’ opposition to the ICC would only intensify, with President Clinton signing the treaty on December 31, 2000, but noting its “significant flaws” and recommending his predecessor not submit the treaty to the senate for advice and consent until the flaws were addressed (Feinstein & Lindberg 148). The Bush Administration effectively “unsigned” the Rome Statute on May 6, 2002, and enacted the American Service-Member’s Protection Act (ASPA), nicknamed the “Hague Invasion Act,” which authorizes the U.S. to use “all means necessary” to liberate U.S. citizens or officials from the Court’s jurisdiction if necessary (Feinstein & Lindberg 51). The U.S. also signed over 100 bilateral Article 98 agreeements with other nations, mainly to protect U.S. military and other government officials from being transferred into ICC custody while serving or travelling overseas (Scheffer & Cox 1001).

Although the U.S. has reassessed its hostility to the Court, taking part in the June 2010 ICC Review Conference in Kampala, Uganda, and removing some military financing and education training restrictions from ASPA that were costing some Latin American nations millions of dollars in military aid (Feinstein & Lindberg 51-53), the government remains concerned with the ICC’s many perceived flaws (Rapp). Much of this skepticism has to do with the Court’s independence and broad level of authority and jurisdiction inherent in its structure.

ICC Structure. The ICC is an independent organization and permanent court of last resort that has the power to exercise jurisdiction over persons for the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, and is designed to be “complementary to national criminal jurisdiction” (“Rome” 3). As noted by Dr. Ray Murphy, the Court is structured into four divisions (9), each having the following functions:

The Presidency handles day-to-day administration and is comprised of three judges elected by their peers (9). The Judiciary of 18 judges is elected by the Assembly of States Parties (ASP) and divided into the Pre-Trial, Trial and Appeals Divisions (10-11). The Office of the Prosecutor, currently Luis Moreno-Ocampo (Argentina), receives referrals and information on crimes and investigates and/or prosecutes accordingly (12-14). The Registry handles all non- judicial aspects of the Court and maintains communications with the state parties (14).

Article 16 gives the UNSC a 12-month renewable deferral of an investigation or prosecution by passing a resolution under Chapter VII of the UN Charter (“Rome” 12). The Court may rule a case inadmissible under Article 17 if “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” among other reasons (“Rome” 13).

Notably, the “crime of aggression is applicable only to those ICC state parties that have ratified or otherwise accepted the amendment to the Rome Statute on aggression” adopted on June 11, 2010 (Schaefer 7). State parties may also opt out of crime of aggression (COA) jurisdiction by not ratifying the amendment or filing a declaration of non-acceptance with the Registrar (Schaefer 7). Nonparty states are without such protective language regarding the three core crimes, however, and states have found numerous other objections with the Court’s structure and procedures, not the least of which is a perceived lack of accountability.

No Checks and Balances. The ICC operates with extraordinary independence by allowing the prosecutor to avoid Security Council oversight prior to launching an investigation (Ochoa 12). According to Article 19, the ICC “shall satisfy itself that it has jurisdiction in any case brought before it,” thus determining its own jurisdiction (“Rome” 14). This of course doesn’t sit well with a country like the U.S. with clear legislative and executive checks on judicial power.

Danger to National Sovereignty. Marc Grossman points out that national consent and Security Council mandate are necessary preconditions the ICC fails to employ to protect citizens of nonparty states (3). Schaefer and Groves add, “Article 34 of the Vienna Convention … unequivocably states: ‘A treaty does not create either obligations or rights for a third state without its consent’” (13). But if the ICC prosecutes nonparty nationals, I think it does.

Based on the Statute’s commitment to complementarity, one would think the ICC would always respect sovereignty and consent, but if the Court determines that the state in question is unable or unwilling to prosecute “based on its own interpretation of the relevant international legal requirements, the court can proceed with the investigation” (Schaefer & Groves 14).

Political Manipulation. Politically motivated investigations would seem to be limited by the Statute’s lack of jurisdiction over actions committed by nationals of nonparty states on the territory of nonparty states, but Prosecutor Ocampo recently opened investigations into alleged war crimes by Israel in Gaza and by U.S. troops (presumably) and the Taliban in Afghanistan (Lauria A10; Rotella 1). In the case of Afghanistan, that state is party to the Statute but Ocampo’s actions do seem to confirm fears that the Court would overstep its bounds by investigating matters that U.S. courts are willing and able to handle.

In the case of Gaza, the Palestinian referral is complicated given the fact that Palestine is not a state and Israel is not party to the Statute (Rotella 1). Moreover, “Hamas has appropriated Gaza and doesn’t recognize the Palestinian Authority” (Rotella 2). If Palestine is recognized as a state by the ICC, the Court may find itself at the center of a political firestorm that will no doubt confirm accusations that the prosecutor’s proprio motu is subject to political manipulation (Philp & Hider). Perhaps this a back-door mechanism for recognizing Palestinian statehood.

Judicial Neutrality. While many ICC proponents point to Ocampo’s distinction and fine judgment as a lawyer, Madeline Morris points out how many questionable calls were made by prosecutors of “fine judgment” in the International Criminal Tribunal for the former Yugoslavia (ICTY) regarding issues involving NATO military actions in Bosnia (34). For example, “one stated purpose for indictment of … Croats … was to dispel Serbian suspicion that the ICTY was anti-Serb” (Morris 34). If the ICC adopts similar logic, the facts may become secondary to impartiality, and law-abiding states could be frequently prosecuted (Morris 35).

Vulnerability of Military Personnel. Kurt Mills and Anthony Lott explain, “Because of significant power asymmetries, the United States is much more likely to find itself in a situation where some of its nationals might be accused of war crimes” (506). The vulnerability of U.S. personnel is not restricted to armed conflicts, but includes the many humanitarian and UN missions supported by U.S. personnel as well. Aggressive prosecution would undoubtedly deter U.S. participation in future humanitarian efforts.

Domestic courts can also handle more cases than the ICC which “has only begun two trials and hasn’t concluded them” (Rapp & Koh). By providing financial, legal, and technical resources the ICC could perhaps strengthen capacity at the domestic level to “inspire local ownership of results” and some local ownership of the process, as was the case in Yugoslavia, Rwanda, Sierra Leone, Cambodia and even Iraq (Bellinger).. Bellinger echoes the old adage of “justice delayed is justice denied,” and recommends that we focus on the efficiency of international courts and tribunals rather than their purpose. A current example is Thomas Lubanga Dyilo of the Democratic Republic of the Congo (DROC), on trial for conscripting child soldiers, who was transferred to the ICC on March 17, 2006, and has had his trial put on hold twice, once in 2008, and most recently on July 8, 2010, due to procedural issues between the Trial Chamber and Office of the Prosecutor (ICC Weekly Update #42). This is a rather excessive length of detention with nothing to show for it, and it certainly begs the question of institutional competence.

Ineffectiveness. Perhaps the biggest disappointment in the Court’s short history has been its overall performance. The ICC has issued 12 arrest warrants, but only secured four of these individuals into its custody, and no trial has gone full cycle (Feinstein and Lindberg 62). If the ICC cannot capitalize on “low-hanging fruit” referred by state parties and the Security Council, how can it expect to handle more challenging cases (Schaefer & Groves 15)? Ambassador Rapp quoted an ICC prosecutor as saying, “How do you land on Mars when you haven’t proven you can land on the moon?”

The ICC will need to land the plane somewhere and sometime soon, or risk its credibility. In addition to these general objections, the Court is faced with deeper, conceptual challenges as well. The next section of the paper will summarize these challenges.

Section Three – Conceptual Challenges to the Court

Legitimacy. Critics of international law like John Bolton point out that because international law lacks a constitutional framework, it cannot effectively bind “global citizens” in unanimous consent (D’Amato & Abbassi 24). Marion Smith adds, “Mere ink on paper cannot imply constitutional legitimacy, nor can the participation of some democratic countries confer democratic accountability upon the ICC” (6).Thus, for ICC critics the conceptual foundation of the Court’s legitimacy “rest on unacceptable premises” without an enforcement mechanism and some measure of democratic, sovereign accountability (D’Amato & Abbassi 28).

Relevance. Could the ICC effectively administer indictments against Hugo Chavez or Mahmoud Ahmadeinejad? How about Barack Obama or Vladimir Putin? Stephen Rademaker opines, “Giving the ICC jurisdiction over aggression would probably prove fatal to the court. Exercising such jurisdiction would almost immediately entangle it in international controversies that defy judicial resolution, quickly discrediting the institution.” Such an exercise of jurisdiction would surely undermine the Court’s “independence and legitimacy” (Kaye). Yet, if the ICC sticks to indicting leaders of war-torn African nations, the Court risks harming its own perception of judicial impartiality. I guess you have to learn to ride a bike before you get to drive a car.

Maintaining Neutrality and Impartiality. When the ICC issued an indictment and arrest warrant for Sudanese president Omar Hassan Ahmad al-Bashir in the middle of tenuous peace negotiations, it back-fired, resulting in the immediate expulsion of “at least 10 foreign aid groups that provide food, water, medical care and other assistance to more than a million displaced people in the western Darfur region,” creating a humanitarian disaster and causing many to question the timing of the ICC’s actions and its lack of concern for victims (McCrummen & Lynch).

Vinjamuri adds, “the government of Sudan views the ICC as a court that supports rebel action … the perception that international justice is neither neutral nor legitimate is exacerbated by the ICC’s interventions in ongoing conflict” (204). Therein lies the problem of sending the judiciary in prematurely to address what military forces have failed to resolve. This is a prerequisite for the judiciary having any effective role in the first place. In cases like Sudan, peace and justice may be adversarial objectives until the military dust has settled.

Criminal Law as a Substitute for Self-Help. Can an international criminal court truly deter the most serious crimes of international concern by substituting judicial measures for self-help? Elizabeth Rubin declares, “The Hague has become a symbol of both the promise of international law and its stunning shortcomings. We have reached a point in world affairs at which we learn about genocide even as it unfolds, and yet it is practically a given that the international community will not use military intervention to stop it” (1).

Realpolitik national interests may be more important than altruistic aspirations when it comes to choosing legal alternatives over military intervention in certain situations. Kenneth Anderson claims that as an ICTY observer with Human Rights Watch in the 1990’s, “Some NATO officials … were candid with me about just how much they saw the ICTY as a way of avoiding military intervention” (334).

But Anderson admits that post hoc justice doesn’t work unless the situation on the battlefield has settled (335). In fact, he goes on to make several poignant observations and ask some tough questions. Noting that “justice is universal, but the right to administer it is not,” he asks, “Can this be morally right? You didn’t intervene – but you still have the right to conduct a trial? On what moral basis, pray? Your prudence or your cowardice?” (338, 340).

Moreover, Anderson maintains that international criminal law as a cure-all and substitute for self-help undermines military reciprocity by deterring proportional, lawful reprisals that help “ratchet down” the “cycle of escalation” (342). The combination of the ascent of international criminal law and erosion of reciprocity has also created “strong disincentives to capture suspects,” leading to “targeted killing via … robotic” Predator drones (346). Targeted killings may in fact be cheaper and “less messy than the problems of detention,” Anderson (346).

The laws of war were mainly designed for groups, but their consistent interpretation may rest on shakier ground with the rising emphasis on individual criminal liability. This may not affect the rank-and-file members of a military unit, but the high level commanders cannot ignore it. Those with advanced electronic weaponry at their disposal may opt for high-tech justice over judicial remedies, not exactly an endorsement of the rule of law.

Peace v. Justice. In matters of peace and justice, the role of the ICC as a harbinger of peace and deterrent to criminal activity leaves much to be desired. Vinjamuri observes that in Uganda, the ICC failed to bring the Lord’s Resistance Army (LRA) to the negotiating table and argues there is “no sustained support for the claim that justice is necessary for peace” (205). Anderson adds, “Nuremberg was a lovely hood ornament on the ungainly vehicle that liberated Western Europe, but it was no substitute for D-Day” (335).

By exclusively embracing the “hard” options, the ICC positions itself antagonistically against legitimate options for peace and reconciliation. By inserting itself into conflicts prematurely, the ICC may provoke a backlash against victims and civilian populations. The ICC doesn’t merely challenge “soft” options for keeping the peace, it also challenges the traditional authority of the UN Security Council to maintain or restore it.

Section Four – Challenges to the UN Security Council

Is the ICC really a new form of collective security, or could it simply be a way to reform the rigid, inflexible institution of the United Nations itself? Article 24 of the UN Charter gives the Security Council “primary responsibility for the maintenance of international peace and security,” while Article 39 says, “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security” (“Charter”).

Interestingly, Anderson sees the ICC and its adoption of a definition for the COA specifically “as a mechanism for achieving reform of the Security Council over the long haul by gradually hiving off parts of its mandate and authority” (355). Is it wise to move political decisions into a judicial forum at the expense of the older, reform-resistant UNSC? Given that UNSC members China, Russia and the U.S. have not ratified the Rome Statute, I have my doubts about the practical feasibility of such a bold move. While good arguments exist to reform the UNSC, this mechanism would remove the only measure of judicial oversight the ICC has and create more problems than it solves. Another highly debated area of the ICC’s scope of operations is its jurisdictional authority.

Section 5 – Jurisdictional Issues

Delegated Jurisdiction. Pursuant to Article 12, state parties consent to ICC jurisdiction on a territorial basis while non-state parties may be subject to jurisdiction based on a UNSC referral or Prosecutor investigation (ICC “Rome”). Some believe this is a lawful exercise of universal jurisdiction. However, Morris points out that “consent to the universal jurisdiction of states should not be considered equivalent to consent to the delegation of universal jurisdiction to an international court” (29).

Territorial Jurisdiction. Article 12 allows a state party to delegate its territorial jurisdiction over nonparty nationals to the ICC for the crime of genocide, crimes of humanity and war crimes committed on the territory of a state that consents to ICC jurisdiction (“Rome”). As previously noted, nonparty states are not subject to COA jurisdiction. Morris notes that delegated territorial jurisdiction is prone to abuse for political reasons, and prosecuting states still require the consent of the defendant’s state of nationality as it was required in the Tokyo and Nuremberg tribunals

(45). Moreover, the ICTY and ICTR tribunals functioned within the state where the crimes occurred per UNSC authorization (Morris 45).

Universal Jurisdiction. Some may argue that the crimes covered by the Rome Statute are so heinous and reprehensible that universal jurisdiction is warranted, perhaps even required under jus cogens norms. Regardless, Morris argues, “jus cogens norms and erga omnes obligations do not include a requirement that prevention and punishment occur through the mechanism of an international court” (57).

Exercising jurisdiction over nationals of nonparty states is also not supported by “extensive and virtually uniform” state practice mentioned in the International Court of Justice’s Continental Shelf case as a requirement for the formation of new rules of customary law (Morris 58). Ademola Abass observes that in the ICTY trial of Dusko Tadic, jurisdiction was based on the “serious nature of the crime” and the fact that Tadic had “lived in Germany for several months,” not on universal jurisdiction (364).

State practice regarding universal jurisdiction stipulates that the “asserting state must have received and declined an extradition request” in order for such jurisdiction to be exercised (Abass 357). Even then, Abass explains, the receiving state merely has the option, not the obligation to prosecute (366). France, Spain, Germany and Belgium have all recently demonstrated reluctance to exercise universal jurisdiction unless the person was their own national and physically present on their own territory (Abass 366). Universal crimes need not be prosecuted through universal jurisdiction. To ascribe such unlimited, automatic jurisdiction to the ICC is to erroneously ignore state practice and customary international law.

Section Six – Prosecuting the Crime of Aggression

Pursuing Clarity. When the Review Conference of the Rome Statute defined the crime of aggression (COA) in Kampala in June 2010, it delayed activation of jurisdiction until “a decision is taken by two-thirds of the State Parties to activate the jurisdiction at any time after 1 January 2017,” and “at least 30 State Parties have ratified or accepted the amendments” (Coalition for the ICC). Neither the two-thirds vote by the ASP nor the 30 ratifications should be taken for granted that they will happen as planned in 2017. There is still much to debate. Although the ASP agreed on the verbiage, “there was considerable dispute about its meaning” (Schaefer 4).

Certainly the codification of this jus ad bellum offense has the potential for deterring unlawful and illegitimate acts of warfare that violate the principles of the UN Charter. As the International Military Tribunal stated: “Crimes 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” (qtd. in Fletcher 236). Is the Statute clear enough to avoid violation of the principle of nullem crimen nulla poena sine lege (there is no crime, nor punishment, without a law) in order to prosecute the most serious international crimes committed by men?

Thankfully, the U.S. was able to push the Review Conference to adopt an understanding to the COA amendment which established a threshold of “manifest violation of the [UN] Charter” with “character, gravity and scale” collectively necessary to “satisfy the manifest standard” (RC/Res.6). But even this clarification may be too vague. Oscar Solera asks, “What constitutes the difference between a violation of the Charter and a “manifested” violation?” (808). What do ‘character,’ ‘gravity,’ and ‘scale’ mean? Since the definition only mentions states, how will it address aggressive acts by non-state actors or terrorists? What if the UNSC and ICC disagree on an act’s gravity and scale? Who gets the last word?

Unanswered Questions. I would assert that these questions raise legitimate concerns about the ICC’s ability to render just decisions and operate effectively. Other questions involve the ICC’s fairly undefined role as a partner to the Security Council. Kari Fletcher posits, “ICC dependence on the Security Council could give the Security Council a quasi-judicial role; a role it was not meant to take” (251). Such is the overly-legalized state of affairs in international relations today.

The last word has major implications. Does a Security Council determination on aggression trump an ICC determination? If the ICC has the last word, the UN Charter may be considered “rewritten.” I imagine the P5 would not take that lying down. On the other hand, a UNSC determination on aggression prior to trial could jeopardize the presumption of innocence.

Despite all of its shortcomings, the ICC may yet have some positive attributes. The Court is probably not going away anytime soon. The U.S. has several practical ways that it can support the ICC as a nonparty partner, bolster its effectiveness, and further its own national interests.

The ICC does have its supporters. Robert Johansen lauds the Court’s cost-effective deterrence capabilities (3). Feinstein and Lindberg credit the Court with bringing the LRA back to peace negotiations in Uganda (74). Most notably, David Scheffer has significantly changed his tune since his skeptical days as President Clinton’s Ambassador for War Crimes, praising the Court’s preconditions to jurisdiction while acknowledging nonparty nationals could be “arrested and transferred to the Hague” if governments are unable or unwilling to prosecute (Scheffer & Cox 1000). Nice.

Feinstein and Lindberg offer several practical ways to support the Court and build its judicial capacity including: re-signing the Statute; supporting UNSC referrals; contributing to the Trust Fund for Victims; providing technical support, intelligence sharing and investigative expertise; and appointing liaisons with ICC investigators (104-124). More conservative commentators like Brett Schaefer prefer maintaining Article 98’s, refusing treaty ratification, and pressing ICC states to resolve differences over the COA, delaying its implementation beyond 2017 if necessary (10-12).

Conclusion

“There is a moral imperative to seek justice, but there is no moral imperative to globalize its pursuit.” Marion Smith (8)

The Court needs to bring a trial full cycle and put someone like Lubanga Dyilo behind bars for good. {* Editor’s Note: The ICC did find him guilty in March of 2012, and sentenced him to 14 years in prison in July 2012. However, Dyilo’s attorney appealed the conviction in December 2012. Jeff D *} It needs stronger international cooperation that results

in more arrests and successful transfers to the Court’s custody. It needs to stay out of Israel and Afghanistan where it’s in over its head and the risks are too high. Without more legal, technical, financial, and diplomatic support from the United States in particular and its own state parties, it will be an uphill battle for the Court to succeed. I hope the Court does succeed. Nevertheless, the Court’s significant conceptual and practical challenges cannot be easily dismissed.

I find the ICC’s lack of accountability, questionable reach of jurisdiction, problems with projecting judicial neutrality, propensity for the politicization of investigations, and its lack of an enforcement mechanism to be genuine obstacles to its future success no matter how many resources are thrown its way. In some cases, Darfur for example, the Court may actualize destabilize international conflicts by prematurely putting justice ahead of peace. This is not the only occasion where the ICC has been its own worst enemy.

In adopting a definition on the COA, the Court has basically made it possible for everyone to opt out – state parties and non-party states alike. Will state parties self-refer when their nationals commit a COA on their own territory? In an effort to obtain universal acceptance regardless of the cost, the ICC has allowed a de facto “reservation” with opt out provisions that completely defang the object and purpose of including the COA in the first place.

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