|April 23, 2002||atimes.com|
Politics bedevil the International Criminal Court
By Sreeram Sundar Chaulia
The Rome Statute of 1998, establishing the International Criminal Court (ICC), initially envisaged a two-year signature period followed by entry into force, stating in Article 125, "The statute shall remain open for signature in New York, at United Nations headquarters, until December 31, 2000." (1)
That it had to be kept open for nearly one-and-a-half years longer than expected before the ICC became a functioning reality is an obvious indicator of the political hurdles which hindered the court's birth pangs and also a portent for the uncertain future of this unique institution of international law. On April 11, 10 countries ratified the Rome Statute, surpassing the number needed to trigger entry into force of the statute on July 1. Even now, though, it is being reported that the government of the United States is seriously considering the option of "unsigning" the treaty (2), and the majority of member states of the United Nations remain non-ratifiers of the ICC in its present form.
From the perspective of the global human-rights movement, the ICC is a stellar achievement that must be championed and allowed to blossom into an effective organization for the future security of humankind. Yet, even though constituted in the name of the people of the world, the ICC is the creation of an Assembly of State Parties of the United Nations and it would be wishful thinking not to expect heavy maneuvering and politicking to influence its nature and outcome.
This essay intends to delve into the international politics plaguing the ICC, present the principal objectors and their rationales for opposition and also make the case for selective modifications/additions in the statute (a full review is not due for seven years) which might induce broader member state participation and allay numerous apprehensions and imagined fears concerning the "the new world court".
When the World Trade Organization (WTO) treaty was under consideration in 1995, a "great sovereignty debate" erupted in the US Congress, with speaker after speaker excoriating a rules-based multilateral trading organization as detrimental to traditional American leverage and "discretion" practiced under the General Agreement on Tariffs and Trade (GATT). The advantages that accrued to the world's largest trading nation and sole superpower in a loosely bound GATT regime were held to be threatened once the WTO, with a strong enforcement mechanism (Dispute Settlement Body), was inaugurated. A similar denouement occurred when the ICC was re-mooted by Caribbean countries in 1989 at the UN General Assembly.
The US State, Justice and Defense departments objected to the concept of a permanent standing international criminal court, inter alia as a reaction against the International Court of Justice's adverse ruling in Nicaragua vs USA (1984); fear of losing unilateral freedom to apprehend international criminals abroad; and liability of US military personnel to be prosecuted for war crimes and controversial foreign interventions. But once the ad hoc tribunals for war crimes and crimes against humanity were set up for erstwhile Yugoslavia and Rwanda, a growing chorus for a permanent ICC to stem the tide of impunity and inhumanity gained momentum and the US could no longer drag its feet on the issue.
In the preparatory sittings preceding the Rome Diplomatic Conference, the United States played an active role and the Bill Clinton administration declared that it was in favor of the ICC, with the caveat that "right protections should be built into the statute". American anxieties centered on the powers granted to the all-important Office of the Court's Prosecutor, who was responsible for accepting a referral of a crime falling under the court's jurisdiction (Article 13); conducting a pre-trial investigation into the said crime; and conducting the prosecution to prove the guilt of the defendant after admission of the case into the trial chamber.
Complaints of crimes could also be brought through referral by a state party or by the Security Council under Chapter VII of the UN Charter, but the US expressed unease at the room given to the prosecutor's volition at the admissibility stage. An independent ICC prosecutor would turn out to be, in the words of one US official, "an international Ken Starr who would bedevil US military personnel and officials". (3)
The battle lines at the Rome conference thus got drawn between a US-led demand, supported by the UK, France and Russia, for a Security Council-controlled court (where the veto would count as the trump card) and the rest of the parties which preferred a robust prosecutor's office to ensure that no country's citizens accused of war crimes, genocide or crimes against humanity would be let off the hook.
Considering that there were enough checks and balances against misuse of the prosecutor's office (Article 15, Article 16, Article 42) and also the weight accorded to "complementarity", whereby a case may be brought to the ICC as a last resort when domestic law of the concerned country is unwilling or unable to prosecute the accused (a rule likely to hurt Third World countries ridden by civil wars and moribund judiciaries more than the West), the US decision not to vote in favor of the Rome Treaty in 1998 unless granted an iron-clad veto of jurisdiction over US personnel and officers was a slap in the face for the nascent ICC. (4)
In the words of the Syrian delegate, "If the US walks out of this court, it will be like the League of Nations." (5) Legitimacy, feasibility and scope of the ICC were at stake without the participation of the world's greatest military and economic power possessing a track record of foreign interventions, peacekeeping operations and military actions. It did appear that domestic politics (of the Jesse Helms ilk) and domestic lobbies (led by the Pentagon), rather than sound reasoning or principle, were the decisive factors in the 1998 no-vote of the US.
Subsequently, US strategy during the ratification period was to try and argue that it is a violation of treaty law for nationals of non-parties to be prosecuted and indicted without the state's consent, a ploy that was rejected by the assembly on grounds that perpetrators of genocide, war crimes and crimes against humanity fell under universal jurisdiction on the principle of hostis humani generis (enemy of all humankind).
Then, the Clinton administration attempted to introduce an amendment to the effect that nationals of non-parties cannot be prosecuted by the court without the state's consent when cases involved "acts of officials or agents of the state in the course of official duties". (6) This too seemed like a ruse, because almost all US military personnel, Federal Bureau of Investigation and Central Intelligence Agency operatives involved in fighting overseas are acting as "officials or agents of the state" and rarely would a case be brought against private American businessmen or tourists for war crimes or crimes against humanity.
Besides, what the US wished to extract through this was a dilution of one of the cornerstones of the ICC - Article 27 - which affirms the irrelevance of official capacity in deciding on prosecution for criminal responsibility. Other principles of humanitarian law, such as command responsibility and individual responsibility (derived from the Nuremberg principles), were also liable to misuse if this American amendment were accepted.
Nonetheless, pushed by the Republican Congress and conservative domestic opposition, the US kept evading the Rome Statute. Senate hearings repeatedly deliberated on the "threat" and "bogus claim" of international jurisdiction over US personnel, noting that the Yugoslavia tribunal had set an "extremely dangerous precedent" by assuming jurisdiction over North Atlantic Treaty Organization personnel and generals involved in the Kosovo campaign. (7)
By pitting the rallying phrase "national security" against the ICC, positions within the US government were hardened to the point where the US was no longer worrying about its ratification of the statute but thinking of ways and means to skirt, escape and some would say, sabotage, the efficacy of the court-in-waiting. As the pace of ratifications from other countries picked up, however, in an about-turn of 180 degrees, Clinton announced on January 2001 an "act of moral leadership" by declaring intent to sign on to the Rome Statute, an intent which had to wait more than 12 months and irrevocable entry-into-force to materialize.
Like the WTO treaty, as the tide of inevitability of fruition and entry into force swelled, the US decided to stay on board and "work for changes from within", a pregnant notion that bespeaks of several political hurdles ahead of the ICC once it starts functioning.
The US appears poised to employ its "bilateral leverage" on other parties to try and relegate the "Track II" referrals (by the prosecutor) to the background and instead promote the "Track I" (state referrals) and "Track III" (UN Security Council referrals) modes of admission of cases. In the process, it is likely to convey to undecided and ratification-pending countries of the developing world that the permanent five members of the UN Security Council will "hijack" the ICC's agenda.
India, for example, is procrastinating over giving its signature because of its interest in "keeping Security Council control over the ICC to the minimum". (8) A corollary negative cue delivered by US juxtaposition of universal jurisdiction ranged against perceived national security and sovereignty is that a number of countries have cited "non-interference in internal affairs" as a major concern that must be protected against ICC meddling. Even though the statute's preamble and provisions repetitively stress the ICC's complementarity with national criminal jurisdictions, the very idea that a state must prosecute its own personnel for, say, counterinsurgency or law-and-order purposes, is anathema to countries facing civil wars, insurrections and other separatist threats to territorial integrity.
Article 57 3 (d), especially, carries an ominous tinge to it by authorizing the pre-trial chamber to allow the prosecutor "to take specific investigative steps within the territory of a state party without having secured the cooperation of that state". Apart from the problem of unwillingness or opacity, several poorer states simply lack the infrastructure or mechanisms for conducting trial of war criminals appropriate to the "norms of due process recognized by international law" (Article 20). A "failed state" or "failing state" will thus feel disproportionately victimized and forcibly brought to the attention of the world by ICC recourse to trials against its nationals or troops.
Another prominent arena for political disagreement and impasse has been the "elements of crimes" which are covered by the ICC's jurisdiction. They are largely borrowed verbatim from pre-existing treaties, such as the 1948 Genocide Convention, the 1949 Geneva Conventions on humanitarian law and the 1976 International Covenant on Civil and Political Rights. While the US and its Western allies have not made the components of "most serious crimes" a casus belli, several UN members, notably China, have sought to bargain for the "threshold" at which crimes are defined.
Serious arguments broke out in the preparatory commission meetings after 1998, with some states calling for revising the contents of the preamble to the elements of crime to exclude or qualify crimes against humanity of enslavement, forced sterilization and coercive disappearance. Heavily populated countries were wary of Article 7 (1) which accepts sterilization only if it was justified on medical grounds and carried out with the consent of persons. They claimed to be prioritizing economic rights of development, of which family planning was a seminal component, over and above other human rights, and called for enforced sterilization to be criminalized only under the genocide and war crimes headings, not as crimes against humanity.
Israel has labeled Article 8 (2 b viii), which treats settlements as a war crime, as "a cynical attempt to abuse the court for political ends" and several European countries have reservations about "incidental loss of life and property of civilians" being included as a war crime. Another bone of contention has been a consensus definition of "crimes of aggression", which is yet to be arrived at, even though the category has been included as falling within the ICC's jurisdiction. Many states hold that this is a highly subjective topic open to misuse and exploitation, and should therefore be permanently excised from the ICC's ambit, while others are of the opinion that the UN Security Council need not be the sole referring authority for aggression because it has often not acted against blatant aggression by pandering to political considerations. (9)
Given such widespread prejudices, misgivings and dissonance in the international community about the ICC, it is imperative that the Rome Statute and attendant documents are suitably adjusted or amended for the court to attain broad-based world backing. International cooperation is a sine qua non for successful functioning of the court, since compliance (even though obligatory under Article 105) can be delayed, obstructed or diluted by states in combinations or blocs if they are determined to do so and take a gimlet-eyed approach toward loopholes in the treaty text.
Article 72 seems to be the most lenient, allowing states a labyrinth of protections and safeguards when sharing of information, conduct of enquiry and handing over of summoned/arrested suspects are all superseded by "national security" concerns. Since sovereignty and security were major slogans of the anti-ICC advocates, drafters seem to have made maximum concession in framing Article 72. While this can be construed as desirable to gain broader acceptance of the Rome Statute before entry into force, it now carries the risk of being invoked every time a case comes up, de rigeur.
Since no review is permissible for the first seven years of the court's existence, the next-best solution to preventing politicization of Article 72 is to empower the pre-trial chamber to shorten the elaborate ritual of correspondence between the concerned state and the prosecutor and to uphold the maxim "justice delayed is justice denied".
It is my contention that the more foolproof the "national security" provision becomes in practice, the greater the likelihood of more ratifications, because impartial, speedy and condign justice will act as a "pull factor" attracting states that are presently cynical or uncertain whether ICC will live up to its promise.
Another weakness rendering the court's efficacy vulnerable to charges of political manipulation and desiccation is Article 59 of the statute, which lays out arrest procedures and obligations of custodial states. State parties on whose territory suspects and offenders are present are mandated to "immediately take steps to arrest the person in question", but the record of the Rwanda war crimes tribunal has shown that no such obligation is met by custodial states. (10)
Both the existing ad hoc war crimes tribunals and the infantile one in Sierra Leone are plagued by this common dilemma of fugitives whom the custodial states are either unable or unwilling to transfer to international justice. The Rome Statute's Article 59 does not specify what fallback option the prosecutor has in the event of a similar development. The ICC lacks a police force of its own and is dependent on state parties belling the cat and in the most plausible scenario of no one coming forward to catch absconders, the court's toothlessness will be exposed.
Linking up to a previously mentioned problem of US discomfort with Track II referrals, if the case under question happens to be a direct initiative of the prosecutor lacking UN Security Council resolutions, it is possible that no multilateral use of force to capture the warranted will ensue. Even if it were a Track I/Track III issue, in a failed state such as Somalia, where war crimes and crimes against humanity have been committed with impunity and where there is no extant government to act under obligations as a custodial state, it amounts to daydreaming for the Security Council to send another intervening mission after warlords, after the "Mogadishu syndrome" of 1994. (11)
Sudan, Angola and several other war-torn African states that welcome the ICC idea are similarly situated in a helpless unenforceable condition under Article 59. What is urgently needed is deliberation on enforcement provisions of the Rome Statute and clarification of their legal and political linkage to Security Council-backed international peacekeeping and UN-authorized use of force.
To conclude, the ICC is as much a product of international politics as of the global human-rights movement. Carrying forward from the history of its strenuous origins, the court will be governed by political considerations. The views and standpoints of the United States, the European Union and Japan (a major donor and financial contributor to the court's infrastructure) will be paramount in the future course and direction the court takes. US failure to stall entry into force of the Rome Statute may end up in increased determination in Washington to "protect American interests from within" the ICC. As a consequence, the divide between universalists and US exceptionalists which predominated the Rome diplomatic conference could intensify as the court finds its bearings.
How the ICC measures up to "Uncle Sam's rights narcissism" (12) and yet retains its moral and legal impartiality in the eyes of the world remains to be seen. True to Thomas Hobbes' aphorism that "covenants without swords are but words", unless necessary amendments and additions are put in place for the ICC's enforcement agenda, the permanent court may just prove to be what conservative US scholars have mockingly called "bureaucratic empire-building". (13)
It is therefore time for an end to premature jubilation and celebration that the spirit of "never again" and "zero tolerance" for the worst and gravest crimes against humankind has been revived with the ICC's entry into force, and time for sober cogitation on the means and measures that need to be undertaken to guarantee that the court is functional, competent and widely embraced.
(1) Rome Statute of the International Criminal Court
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