Return to Pragmatism:  The International Criminal Court’s Place in the International Arena

 

 

 

 

 

 

 

 

 

 

 

Christopher Bailey

The Law of Nationbuilding Seminar

Spring 2009

I.    Introduction

The beginning of the 21st century has seen a dramatic shift in the international system.  The traditional principles and theories of international law have been considerably tested under the weight of global terrorism, the rise of non-State actors, and the progression of globalization.  After the devastation of the Crimean and U.S. Civil Wars, the international community began to discuss and create enforceable rules of conduct with the United States standing at the vanguard of the human rights movement.[1]  The United States argued that for legitimate peace, the rights of the individual must be protected and promoted.[2]  This notion of individual liberties, while ground-breaking for many parts of the world, was the foundation of the United State’s democracy.[3]  The United States argued that the best way to develop and extend human rights was through the international community, where every State is responsible for the protection and safety of the individual citizen.  While the United States helped found the international human rights movement, the United States has lacked the conviction to take the next step for the development of those rights.[4]  In the face of the new global challenges the United States faces, the United States must take the next step for the evolution of human rights for its own legitimacy and for the furtherance of the American ideal championed all those decades ago.

As human rights law has developed and progressed in recent decades, skepticism has grown regarding whether or not human rights can effectively be enforced.  As Professor David Kennedy of Brown University points out, “human rights, by criminalizing harm and condensing its origin to particular violators, can serve as denial, apology, legitimation, normalization, and routinization of the very harms it seeks to condemn.”[5]  The United States has fallen victim to this internal dilemma of human rights; it repeatedly condemns the actors responsible for atrocities, but never takes the next step of actually penalizing the perpetrators creating the violence.[6]  This lack of follow through provides tacit approval to those regimes willing to commit human rights violations.[7]  For the United States to be considered a legitimate power in the 21st century, it must adopt a meaningful way of endorsing and enforcing human rights. 

The United States is faced with difficult questions regarding the next step it should take for the promotion of human rights: what form should adjudication and enforcement of human rights take?  Though several forms have been presented, two chief mechanisms have come to the forefront of the discussion, 1) domestic universal jurisdiction and 2) the International Criminal Court (ICC).  Though both avenues are considered progressive for the success and enforcement of international human rights, they are fundamentally different in application and scope.  Universal jurisdiction is based on the effectiveness of national courts to prosecute crimes,[8] while the International Criminal Court was founded on the proposition that a non-State judicial body provides the necessary legitimacy for the success and durability of effective human rights prosecution.[9]  There is a legitimate need, however, to balance the elements of both State sovereignty and international law for effective adjudication in international criminal law.[10]  In light of the current international system and the need for effective protection of human rights, the International Criminal Court is the best body for the legitimate adjudication of human rights abuses.[11] Working from the foundation of international law, the ICC provides the opportunity for a stable and consistent entity to investigate, prosecute, and enforce human rights effectively.[12]

An in-depth assessment of both the theoretical basis and practical application of universal jurisdiction and the ICC are necessary.  Turning first to universal jurisdiction, the theoretical principle of universal jurisdiction has developed in direct opposition to the traditional norms of international law.[13]  While universal jurisdiction is theoretically powerful, it has been incredibly inept in practice.[14]  This failure of universal jurisdiction is demonstrated by the example of Belgium’s 1993 universal jurisdiction statute[15] and the subsequent repeal of the statute in 2003[16] in response to overwhelming political pressure, namely from the United States.[17]  Shifting to the ICC, the creation and jurisdiction of the ICC was developed in response to the practical dilemmas of universal jurisdiction.  As the Court develops, it now faces its biggest challenge of legitimacy yet, the arrest warrant for the current President of Sudan, Omar al-Bashir.[18]  Finally, the United States must recognize that the ICC is the best structure for the realization of effective prosecution of human rights atrocities.

Pragmatic Theory of International Criminal Law

Before beginning the discussion, it is important to address the necessary theoretical framework for assessing the best structure for effective humanitarian protection. The majority of articles on the subject of international criminal law, though well articulated and argued, tend to revert to dogmatic doctrines either arguing that internationalization is fundamentally good or fundamentally bad.  This is especially true in the discussion of policy and the enforcement of human rights:

For one thing, the water is muddied by very general – and altogether unhelpful – arguments for embracing or rejecting international policy making wholesale; like the idea that internationalization is technically or historically inevitable, or that some problems simply are global and therefore require international policy solutions.  Or, on the other side, the argument that humanitarianism requires national boundaries and a national welfare state to be successful.[19]

It is this inflexible analysis that continually limits the discussion of international criminal law as a meaningful policy choice.[20]  International criminal law views itself as somewhat separate from the rest of the body of international law, as something morally legitimized.[21] This attitude dismisses the need for succinct and well reasoned policy development that comes with other forms of law in the international arena; for example the law of contracts, trade, or tax. “The common idea that intervention is a periodic and exceptional activity encourages neglect of the policy-maker’s baseline engagement in the status quo ante.”[22]  It is this neglect and dismissive attitude towards the practical needs of international criminal law that has led to many of the shortcomings and significant critiques of human rights protection.  These critiques range from the double standards for different perpetrators of abuses, the argument that Western powers are using international criminal prosecutions in an effort to re-colonize countries, or that human rights law’s lack of enforcement actually emboldens states to commit human rights abuses.[23] 

            This begs the question, how should international criminal law be enforced?  Instead of analyzing human rights enforcement and international criminal law through the moral lenses, it is important to address the very real outcomes of the adjudicatory structures of international criminal law.  What are the outcomes of utilizing national courts through universal jurisdiction?  What are the outcomes associated with acceptance into the International Criminal Court?  What does either structure do for those who suffer these atrocities on the ground?  Are government’s more concerned with prosecuting individuals that have committed crimes or proactively stopping violence currently taking place?  These are complex questions that do not easily fit into any one theoretical mindset.  Though complex, these are questions that must be answered.  Utilizing the pragmatic approach, it is easy to notice that every criminal system requires a combination of both persuasion and enforcement to be effective.  Further, there must be a fundamental partnership between both the political and judicial systems to be effective.  It is through this mindset, the ability to foster working relationships between coercion and enforcement, politics and the judiciary, that effective adjudication can be defined.  It is this pragmatic mindset that is the basis for the ICC and the foundation for its possible success in prosecuting international criminal law.       

 

 

II.    Universal Jurisdiction

A.     Universal Jurisdiction vs. Traditional Norms of International Jurisdiction           

Universal jurisdiction has been a hotly contested concept in international law for decades.  There is a fundamental difference between the theory of universal jurisdiction and the application of it in practice.  The theory of universal jurisdiction holds that a State is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim.[24]  Though the definition is quite broad, there is a very narrow list of crimes that fall under universal jurisdiction’s scheme; piracy, genocide, crimes against humanity, torture, slave trade, and war crimes.[25]  Though no country argues that these crimes should not be prosecuted, universal jurisdiction is controversial because of its dismissal of State sovereignty, the hallmark of public international law.[26]  Universal jurisdiction allows States to ignore the sovereignty of another State by investigating, arresting, and possibly imprisoning individuals with no connection to the forum State.  State sovereignty has been the core principle of international law and serves as the basis for the three traditional justifications for jurisdiction.[27]  Under traditional international law, liability was based on one of three principles; 1) territorial principle, 2) nationality principle, or 3) the protective principle. 

Under the territorial principle, exclusive authority to adjudicate an issue is based on the territory of a State.[28]  The territorial principle posits that a State has complete and total control over any crime arising within the territory of that State.[29]  This is the basic and easiest form of jurisdiction to find because as the State is the core actor under international law, the State has complete control over its own territory.  Thus, a foreign State has no jurisdiction in another State without express permission.[30]  Universal jurisdiction allows a State to exert jurisdiction over a crime that has no connection to its own territory.[31]  A State can accordingly enforce its own power over the events and actions occurring in another State.[32]  Critics of universal jurisdiction argue that this power jeopardizes the very foundation of international law.  As former Secretary of State Henry Kissinger has pointed out, himself the subject of several warrants for arrest based on universal jurisdiction, “It is an important principle that those who commit war crimes or systematically violate human rights should be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well.”[33]  The ability for a State to reconcile violence or atrocities committed is wrestled away from the sovereign, and taken by another State which can severally limit some of the positive outcomes of reconciliation and adjudication programs.[34]  Universal jurisdiction completely undermines the sovereignty principle because a foreign State has jurisdiction without express permission of a sovereign and often times against the stated will of the sovereign State. 

Turning to the second principle of jurisdiction, the undermining of sovereignty is the basis for resistance against universal jurisdiction under the nationality principle, also known as the active personality principle.[35]  The nationality principle stands for the proposition that a State can exert control over their own citizens, even when that citizen isn’t within the State of nationality, “Under this theory a state may exercise its sovereign power by prescribing conduct for its nationals, even where they are abroad.”[36]    Universal jurisdiction allows a State to indict, arrest, and prosecute a non-citizen for a crime committed against a victim who may or may not be citizen of the acting State.[37]  A State can exercise universal jurisdiction over an individual when neither the perpetrator nor victim are a national of that State.  This is a fundamental shift in international law because a citizen could be held responsible for actions committed domestically by foreign courts and foreign laws.[38]  This takes away one of the key purposes of a State, the ability to uphold and enforce laws on their citizens.

The third basis for jurisdiction under international law is the protective principle.  The protective principle asserts that a State has jurisdiction to the extent necessary to protect its fundamental and legitimate interests.[39]  This principle is typically deemed the “national security” principle and is utilized when States consider a fundamental threat to their national security and in response preemptively exerts sovereignty over a particular individual or claim.[40]  At first glance this principle seems quite broad and similar to the theoretical underpinnings of universal jurisdiction; however, there is one fundamental difference between the two concepts.[41]  Under the protective principle, a State must demonstrate a pressing need or threat to their national security to trigger jurisdiction.  This is not the case under universal jurisdiction.[42]  Universal jurisdiction can be triggered at any time by a State without any fundamental connection to the forum State; no connection to the people involved in the incident, no connection to the geographic location, or any connection based on security concerns.[43]  Thus the scope of universal jurisdiction is much broader than under the protective principle and a State, ipso facto, can initiate proceedings against a party.[44]

After analyzing the three traditional forms of jurisdiction under international law, it is easy to see why the concept of universal jurisdiction is so controversial.  Without a clear basis in any established form of traditional jurisdiction, universal jurisdiction represents a fundamental break from traditional international criminal law.[45]  It is at this point, however, where universal jurisdiction fails to take the next step.  Advocates of universal jurisdiction promote competing rights to jurisdiction, labeled a “wild west” scenario by critics, where whichever country holding the necessary power to adjudicate should adjudicate.  This completely dismisses State’s very real need for the protection of sovereignty and allows for individual states to prosecute how they see fit.[46]  This leaves little room for legitimate discourse when the balance of power between States is so inequitable that outside observers do not see justice being served but instead see forced compulsion.[47]  Proponents of universal jurisdiction view the State system, utilizing universal jurisdiction, as the best structure to prosecute international crimes.  In practice, however, this argument rings hollow.  

B.     Universal Jurisdiction in Practice: Divergence between Theory & Reality

            As discussed earlier, the theoretical concept of universal jurisdiction appears to be quite broad and seemingly powerful, especially in relation to the traditional basis for jurisdiction under international law.  In practice, however, this expansive power is severally limited as States lack either the ability or the will to actively pursue perpetrators of human rights violations under the principle of universal jurisdiction.[48]  States often limit themselves in one of two ways: either phrasing their domestic universal jurisdiction legislation to lack the ability to extradite the perpetrator or by phrasing the legislation to only extend to either perpetrators or victims who are nationals of the forum State.[49]  As Anne-Marie Slaughter notes, “The result, at least at this stage in the evolution of universal jurisdiction, is that although the basis for jurisdiction over war criminals and perpetrators of genocide…have been established in many countries, the actual prosecutions have been blocked in many cases.”[50]  The failure to prosecute has not been because of the lack of adequate laws or institutions to prosecute, but the failure has come from the lack of the political will necessary to effectively prosecute.  Before directly assessing universal jurisdiction in practice, it is important to address two central interpretations of the concept of universal jurisdiction that are typically utilized in different State’s universal jurisdiction legislation; 1) the co-operative limited universality principle and 2) the unilateral limited universality principle.[51] 

            Both the co-operative limited universality principle and the unilateral limited universality principle are focused on a narrow list of specified international offenses.  The core difference between the two principles is who has the ability to exercise personal jurisdiction over the perpetrator.[52]  The co-operative limited universality principle requires a link with the forum State because personal jurisdiction is only triggered if the perpetrator is voluntarily present in the forum State.[53]  In contrast, the unilateral limited universality principle does not require any connection to the forum State.  Instead, a State can initiate a case against the perpetrator without their presence in the forum.  The State can request extradition of the perpetrator, which then independently satisfies personal jurisdiction over the individual, obviously against the will of the perpetrator.[54]  The distinction between these two principles is important because many countries structure their domestic legislation to either provide themselves broad powers to extradite or narrowly to pay lip service to the concept of universal jurisdiction without giving themselves the legislative tools necessary to actually take custody of a perpetrator.[55]  With the co-operative and unilateral distinctions in mind, we turn to what is considered the model for universal jurisdiction’s rise and fall under international law, Belgium’s universal jurisdiction legislation of 1993 and its subsequent repeal in 2003. 

C.     Belgium’s Universal Jurisdiction Experiment

            Belgium’s experiment with universal jurisdiction serves as a strong example of the divergence between the theory of universal jurisdiction and its use in practice.  In response to the growing number of human rights violations in Africa in the 1990s, Belgium enacted sweeping legislation to prosecute suspected perpetrators of grave breaches of international human rights law.[56]  As time passed, however, more and more politically sensitive cases were initiated against world leaders including Ariel Sharon, Yasser Arafat, Fidel Castro, and many others.[57]  As more cases were brought, certain States, the United States in particular, put significant pressure on Belgium to repeal their legislation, and in 2003 Belgium did.[58]  Belgium’s 1993  universal jurisdiction statute and its 1999 amendment was structured through four main elements; 1) sovereign immunity was specifically excluded as a ground for defense, 2) crimes generally included were “grave breaches of international humanitarian law, genocide, and crimes against humanity”, 3) the victim and defendant could be from anywhere, and 4) victims initiated prosecutions.[59]  Through this structure, Belgium had enacted the broadest form of universal jurisdiction in practice because of its “lack of any required link between the suspect, victims, or events, on the one hand, and Belgium, on the other.”[60]  Belgium’s universal jurisdiction statute was thus, universal.  Any victim from anywhere in the world had the ability to come to Belgium and file a criminal complaint against alleged perpetrators of human rights violations.

            The political consequences of Belgium’s legislation arose shortly after cases began being initiated.[61]  After the 1999 amendment which clarified that official immunity was no defense under the statute, three key proceedings were initiated that unnerved the international community.[62]  Indictments were issued for the sitting foreign minister of the Democratic Republic of Congo (DRC) Abuldaye Yerodia Ndombasi, the sitting prime minister of Israel Ariel Sharon, and many others.[63]  The controversy was not over the ability of victims to initiate complaints, but that sitting heads of state could be called into court without regard for their official immunities as heads of state.[64] 

In response to Belgium’s unwillingness to recognize immunity, the DRC initiated proceedings against Belgium in the International Court of Justice (ICJ) arguing that Belgium’s arrest warrant for Ndombasi was invalid.[65]  In February of 2002, the ICJ issued its decision and found Belgium’s arrest warrant invalid on the basis of customary international law.[66]  The ICJ found that customary international law recognized official immunities because of the need for diplomatic relations to continue despite conflicts or disputes that may arise, and that arrest warrants issued internationally for particular heads of state would be too heavy a burden on international relations.[67]  The ICJ specifically stated that, “immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.”[68]  The ICJ argued that individual States did not have the ability, whether or not under universal jurisdiction, to arrest or indict a foreign head of state while that person was in office.[69]  Further, the ICJ stated that the immunity extended to all visits, whether official or private, and covered all alleged acts of the office holder, whether or not the alleged act was committed in their official capacity.[70]  This holding dealt a significant blow to a State’s ability to prosecute foreign actors for alleged human rights abuses.  The holding effectively found that a State has no ability to exercise any jurisdiction over another head of state unless the State of the offender specifically authorized such action.[71] 

While the ICJ did rule on the issue of immunity, it made two caveats to their holding.  First, it specifically stated that immunity did not mean impunity, “immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity.”[72]  Secondly, the ICJ specifically stated that it was not ruling on the legality of universal jurisdiction under international law.[73]  The Court was significantly split regarding the issue of a State’s use of universal jurisdiction generally and so the court specifically did not rule on that issue.  The ICJ’s decision nonetheless was a significant blow to Belgium’s prosecution of war crimes because it removed the ability for Belgium to move proactively against human rights abuses by prosecuting current leaders accused of violations.  Further, the ICJ holding specifically found that a national judiciary cannot prosecute a sitting foreign head of state and must submit to the domestic State of the alleged perpetrator.[74]  The ICJ’s decision, however, was just the start of the collapse of Belgium’s universal jurisdiction.

            In early 2003, a group of Iraqi families initiated an investigation against former United States President George H.W. Bush, former Secretary of Defense Dick Chaney, and former chairman of the Joint Chiefs of Staff Colin Powell, among others, for human rights violations in the 1991 Gulf War.[75]  In response to the initiation of the claim, the United States put significant pressure on Belgium to repeal their universal jurisdiction statute.[76]  The United States went so far as to threaten Belgium that if it did not repeal the statute Belgium would no longer be the host country for NATO headquarters and United States officials would be barred from traveling to Belgium.[77]  In response, Belgium quickly repealed its universal jurisdiction statute in response to the pressure, effectively gutting the legislation completely.[78]  The statute that emerged in August 2003 in response was vastly different.[79]  The new law’s key differences were; 1) law specifically excluded heads of state, heads of government, and ministers who held official immunity, 2) the victim or defendant must be a Belgian national or resided in Belgium for at least 3 years, and 3) the federal prosecutor now controls all claims raised under the statute.[80]

            Belgium’s experiment with universal jurisdiction serves as a clear example of why the divergence between the theory of universal jurisdiction and its practical application.  Belgium created a truly universal statute that gave victims the ability to stop atrocities while they were being committed as well as for prosecutions for past crimes, however, the political realities of a single state antagonizing many proved too strong an obstacle.  Theorists championed Belgium’s attempt, but an honest assessment of its effectiveness shows the inability of States to fully break from political reality.  It is for this reason that universal jurisdiction as a practical tool of adjudication of human rights is a fallacy.  Universal jurisdiction’s utilization of domestic courts alone cannot achieve effective outcomes.  It is this realization that led States to seek a practical alternative, an alternative that has the opportunity to transform international criminal law.

 

III. International Criminal Court

A.     Formation and Scope

            The ICC came into being on July 1, 2002 when the Rome Statute of the International Criminal Court Treaty entered into force.  As of today, 108 countries have joined and ratified the Rome Statute accepting the Court’s jurisdiction, another 40 countries have signed the treaty but have not yet ratified the treaty in domestic legislation, and a handful of countries including the United States, China, India, and Turkey, have not signed.[81]  The ICC was created in response to the growing sentiment in the international community that an intergovernmental organization was needed to prosecute severe violations of international human rights.[82]  In response to this sentiment, the ICC was created to prosecute a narrow number of crimes including genocide, crimes against humanity, war crimes and the crime of aggression.[83]  While the crime of aggression has no definition within the Rome Statute, the other crimes, “are narrowly defined and are given thresholds which imply that only crimes of a grave and systematic character fall within the jurisdiction of the Court.”[84]  Thus, the ICC is charged with a very limited yet vital role in its judicial power to prosecute breaches of international criminal law.  The real conflict for the ICC, however, is between credibility on the one hand and effectiveness on the other.  As Tom Ginsburg points out, “The ICC itself has a legal and political imperative to make its promises of prosecution credible, or risk irrelevance.  These efforts point in the direction of a functionalist need for international criminal prosecutions.  On the other hand, states…may sometimes need to make another type of credible promise, namely a promise not to prosecute.”[85]  This internal conflict of the ICC is the true test for legitimacy in the international arena. 

B.     Basis for Jurisdiction under the ICC

            In the discussion on universal jurisdiction, the break from traditional norms of international jurisdiction is clear.  In the case of the ICC, however, the Rome Statute was carefully drafted as not to upset these traditional norms while still creating a drastically new judicial body through the principle of complementarity.[86]  The complementarity principle serves as the core of the ICC’s legitimacy.[87] Under this framework, the ICC’s jurisdiction is based on a State’s jurisdictional power; territorial and nationality jurisdiction.[88]  When States become parties to the ICC, their acceptance provides the ICC the power to claim jurisdiction through the State’s necessary power over their own territory and citizens.[89]  Within this framework, each State has the “first bite at the apple”, namely, Article 17 of the Rome Statute provides each State the ability to first either prosecute their nationals or prosecute foreign individuals who are carrying out atrocities within their own territory.[90]  The ICC gains jurisdiction over a case only if a State is unable or unwilling to prosecute an individual charged with a grave breach of international criminal law.[91] Sufficient state enforcement can break down in several key areas; lack of judicial efficiency, deficient prosecutorial functions, or inability of the executive to enforce decisions.  The ICC’s role is to step in when these factors occur to fill the vacuum when States are incapable of adequate adjudication.[92]  It is this structural procedure that provides the legitimacy and longevity of the ICC.  State sovereignty is not nearly as upset under the ICC framework as it is under universal jurisdiction.  States still serve as the central actor in the international arena; however, their power is structured by a meaningful international judiciary. 

Many critics of the ICC argue that States should not be forced to prosecute individuals based on politically motivated manhunts and that the ICC serves as a ready forum for such prosecutions.  A proper analysis of the ICC’s structure, however, proves otherwise.  Under the ICC framework, the State is provided initial control over adjudication of the crime, and only if the State is unwilling or unable to reasonably prosecute the crime does the “sovereignty” transfer to the ICC for purposes of criminal litigation.  The ICC’s true function is not to seize a State’s ability to adjudicate alleged perpetrators; the true function is to ensure that States act in good faith when they prosecute, “The real problem, however, will not be the International Criminal Court wanting to assume jurisdiction in inappropriate cases, but the wish of some governments to protect some people from a genuine and effective prosecution.”[93]  The Court determines the unwillingness or lack of good faith by examining, “whether there has been an intention to shield defendants, unjustified delays, biased proceedings, or a substantial collapse of a country’s judicial system.”[94]  The true role of the ICC is to serve as an independent body to verify the good faith effort of States to respect and enforce the human rights treaties they are a part of, even if that means prosecuting their own nationals.[95]

 

C.     ICC’s True Test of Legitimacy:  The Arrest Warrant for Omar al-Bashir

            As set out in the introduction, any genuine analysis of a theoretical structure requires the relation between the theoretical framework of the structure and that structure’s use in practice.  With the overall goal of pragmatism in mind, how effective is the ICC in practice?  Since its creation, the ICC has initiated several investigations regarding human rights violations, “four of these [investigations] were based upon voluntary referrals from states and one upon a referral from the UN Security Council.”[96]  Though the cases of voluntary referrals are important to an understanding of the ICC, those all deal with situations where countries specifically referred the case to the ICC, and thus do not trigger the critiques usually articulated against the Court.  The focus of this Article is therefore on the one referral by the UN Security Council regarding the humanitarian crisis in Darfur.[97]  The UN Security Council referral is considered the true test of the ICC’s power because its investigation and issued arrest warrant are in direct conflict with the stance of the Sudanese government and its current President, Omar al-Bashir.        

            The UN Security Council adopted Resolution 1593 on March 31, 2005.[98]  Resolution 1593 referred the Darfur crisis to the International Criminal Court to investigate the reported atrocities being committed by the government of Sudan and the court was encouraged to “support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur.”[99]  In July 2008, ICC chief prosecutor initiated charges against Omar al-Bashir, and after four years of investigations and fact finding, the ICC issued an unsealed arrest warrant for him, the first arrest warrant ever issued for a sitting head of state, on March 4, 2009.[100]  There has been substantial backlash to the warrant from international commentators as well as the Arab League, a coalition of Arab leaders from around the Middle East.[101]

            There are three elements necessary for the ICC to effectively prosecute Omar al-Bashir and lay the necessary foundation for recognition as a legitimate judicial body.  These three elements are; 1) producing effective trials and decisions that produce assent by the parties involved, 2) must maintain legitimate institutional independence, and 3) serve as a stabilizer for the international system.  Beginning with the first element, the ICC has lacked respect because of its inability or unwillingness to initiate proceedings, “The perceived illegitimacy of any arrest warrant against Al Bashir cannot be separated from the ICC’s…failure to get trials underway.  After more than half a billion dollars spent, not a single day of trial has yet been held.”[102]  Though the ICC has initiated several investigations, actual judicial proceedings have not taken place, severally limiting both the perceived and actual authority of the ICC.[103]  The ICC Prosecutor must focus on the development of judicial proceedings because it is the judicial process, not media statements and political grandstanding, which lay the foundation for legitimacy.[104]  Judicial proceedings need to start both against Omar al-Bashir and lower level leaders in the Sudanese government because it demonstrates to the international community that the ICC’s real goal is for lawful and valid adjudication.[105]  This adjudication needs to be viewed as unpartisan, and instead of only prosecuting the “face” of oppression, the President of Sudan, the ICC must carry out prosecutions against lower level perpetrators as well.[106] 

            The second element, institutional independence, is vital in any judicial structure, whether domestic or international.  Institutional independence is central to the ICC’s legitimacy because any effective strategy for the prosecution of human rights violators requires both “carrots” and “sticks”, but the use of these tools must not be through the ICC.[107]  Institutions like the United Nations, Security Council, or the African Union are political institutions and thus utilize political tools of persuasion and force to achieve their goals.  These tools, however, cannot be the focal point of the ICC’s strategy because the ICC must maintain its independence as a judicial institution.[108]  In the Sudan example, if the ICC serves in an independent capacity, it can maintain pressure on al-Bashir through the arrest warrant while political entities can use the political and diplomatic process to achieve steps toward peace and reconciliation.[109]  It is the combination of political and judicial pressure that is most pragmatic at stopping the current violence in Darfur. 

            The third and final element is the ICC’s need to serve as a stabilizing force in international law.  Critics of the ICC contend that giving it full prosecutorial powers may actually intensify the human rights atrocities being committed.  [110]  This occurs because once the ICC initiates proceedings, the ability for the parties involved to create amnesties are severally limited.[111]  Thus, the ICC can be labeled as the destabilizing force and popular opinion, even among the victims, can swing against the ICC because it is viewed as the hindrance to peace.[112]  The current state of the arrest warrant for Omar al-Bashir echoes the threat of destabilization.[113]  In response to the ICC arrest warrant, Omar al-Bashir expelled eleven foreign aid groups because they were accused of spying for the ICC.[114]  The expulsions have dire consequences for millions of people in Darfur who do not have access to water, food, or medical attention.[115]  To be recognized as a stabilizing force, the ICC must maintain its legitimacy by not backing down to the political process while at the same time ensuring that pragmatic thinking guarantees that the ICC is aware of the political realities on the ground and recognize the possible consequences of its actions.[116]  The ICC must take responsibility for its actions and communicate to the broader international community that it serves as a stabilizing force by creating the impetus for dictators and human rights violators to actually come to the negotiating table.  In the case of Sudan, it would be a catastrophic mistake for the ICC to withdraw its arrest warrant because of the expulsion of foreign aid groups.  Though the immediate threat to the population of Darfur must be recognized, the ICC arrest warrant has created a legitimate basis for Sudan to seek new leadership and Omar al-Bashir’s response of expulsion only alienates him more from the international community.[117]  Due to the lack of enforcement, the ICC must use its powers persuasively to protect its own legitimacy while achieving practical success.     

IV.  United States Policy Towards the ICC

After looking at both universal jurisdiction and the ICC, it is clear that the United States should alter its attitude towards the ICC by re-signing the Rome Statute and begin designing the framework for eventual membership to the ICC.  Before discussing why the ICC is the best choice for enforcement of international criminal law, a brief history of the United States attitude towards the ICC is necessary.  The United States was originally a signatory of the Rome Statute creating the ICC, however, the Bush Administration in 2002 removed the United States signature on the basis that the ICC violated several principles of customary international law.[118]  The United States went further when in 2002, Congress passed legislation prohibiting cooperation with the ICC and “forbidding the use of U.S. funds, directly or indirectly, in support of the ICC.”[119]  The legislation, the American Service-Members’ Protection Act of 2002 (APSA), placed five restrictions on United States interaction with the ICC; 1) prohibited cooperation between any United States court or agency and the ICC, 2) the United States could only participate in U.N. peacekeeping missions that had a specific mandate immunizing United States soldiers from the ICC’s jurisdiction, 3) prohibited the transfer of any national security information to the ICC, 4) prohibited military assistance to States that were party to the ICC without Presidential approval, and 5) authorized the President to use any means necessary to free United States personnel being held on behalf of the ICC.[120] 

By taking such an antagonistic role towards the ICC, particularly removing the United States signature on the Rome Statute, the United States lost all ability to facilitate and shape the development of the ICC and alienated itself from the growing consensus in the international community towards the success of the court.  Though the Obama Administration is still in its formative months, the administration has sent clear signals stating that the United States will stop its antagonistic role towards the ICC.[121]  Secretary of State Hillary Rodham Clinton made several statements regarding the ICC during her confirmation hearing including, “Whether we work toward joining or not [the ICC], we will end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.”[122]  The current administration has demonstrated the desire to improve relations with the ICC even if full membership does not come to fruition.[123]  It is important that United States policy generally maintain an active and positive role with the Court because as the arrest warrant issued for al-Bashir demonstrates, the ICC is and will be at the forefront of the progression of international criminal law in the coming years.

            The ICC framework is the best structure for the promotion of human rights enforcement from the United States perspective for three reasons; 1) the ICC principle of complementarity protects state sovereignty and traditional norms of customary international law, 2) the ICC’s independent structure provides legitimacy in international criminal prosecutions, and 3) a non-state sponsored judiciary can pragmatically withstand the political pressures that states cannot.  The core critique of the ICC by the United States is that the ICC violates state sovereignty by serving as an appellate level court over national courts.[124]  This critique is mistaken, however, because the complementarity principle states that domestic courts have complete control over all proceedings against an alleged perpetrator, and only if the ICC determines that the proceedings were not made in good faith is the ICC capable of stepping in.[125]  The ICC does not serve as an appellate body of national court decisions but a mechanism to ensure that alleged perpetrators are actually tried and do not escape possible liability.[126]  Further, at the request of the United States at the talks for the ICC, there are a number of mechanisms where the Court will find a case inadmissible for hearing by the ICC; 1) the State is currently prosecuting the individual, 2) the State has investigated the case and determined that prosecution is not warranted, 3) the alleged perpetrator has already been prosecuted for the crime, or 4) the case is not of sufficient gravity for hearing by the ICC.[127]  This structure provides a succinct and limited role for the ICC jurisdiction to only be triggered when a State is unwilling to prosecute alleged perpetrators. 

            The second chief critique, specifically waged at the role of the independent prosecutor of the ICC, is that many of the cases will be politically motivated and lack international legitimacy.[128]  This assumption, however, is inaccurate when analyzing the structure and role of the independent prosecutor.  The prosecutor is elected by the Assembly of State Parties, which is an organ of the ICC made up of representatives of the parties to the statute.[129]  The prosecutor is charged with maintaining independence and every potential investigation requires a “reasonable basis” determination by the prosecutor which must then be approved by the Pre-Trial Chamber.[130]  These safeguards ensure that the prosecutor maintains independence and provides a particular amount of legitimacy that is not present under State initiated investigations and proceedings.  Further, the overwhelming support for the Court, evidenced by its current 108 state-members, demonstrates the recognized legitimacy of the Court and its mandate to prosecute human rights violations.[131]  While concrete results have not been attained in the form of convictions, the pressure and international support towards the Court demonstrates the Court’s persuasive influence and presents the United States the opportunity to again serve at the forefront of international criminal law. 

            The third basis for support of the ICC is proven by the case examples discussed earlier.  As the Belgium example identifies, a single State’s attempts at prosecuting human rights violations suffers from perceived illegitimacy, but more importantly, individual State action can be practical suicide in the face of international opposition.[132]  Belgium lacked the political capital and influence to be able to counter the pressures coming from the United States and others in response to their exercise of universal jurisdiction.[133]  This drastically contrasts the ICC example where there was initial opposition to the arrest warrant for al-Bashir, but with the recommendation of the UN Security Council coupled with support from the United States and European Union, the arrest warrant has a much better chance at success.[134]  The ICC framework provides the United States an independent judicial organ that can foster international support for humanitarian positions taken by the United States.  The Darfur crisis is one example, but the investigations initiated so far by the ICC; investigations in the Democratic Republic of Congo and Uganda, are situations that the United States has recognized as needing adjudication by the ICC.[135]  The practical needs of international criminal law dictate that a independent judiciary coupled with politically proactive States can produce meaningful enforcement of international criminal law. 

 

 

V.     Conclusion

There is no doubting the modern trend towards globalization and internationalization in many fields, including criminal law.  This movement, however, must recognize that while internationalization moves forward, States are still the defining element of the international legal system.  It is because of the State’s role in international law that the ICC serves as the most pragmatic and realistic approach for international criminal adjudication.  By coupling both the effectiveness of national judiciaries and the legitimacy of an internationally recognized and accepted judiciary, alleged perpetrators can effectively be prosecuted.  The ICC protects the traditional notions of State centered jurisdiction, but provides States that are unwilling or unable to prosecute a legitimate tribunal for prosecution.  This system compels both the State itself and the broader international community to recognize human rights violations for what they are, crimes that must be prosecuted.  The United States should formally recognize the ICC and again become a party to the Rome Statute.  It is only through recognition of the ICC and its mandate that the United States can again stand at the forefront of international criminal law.  

 

 

 

 

 

 

 

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2.      Anne-Marie Slaughter, Defining the Limits, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 168, 170 (Stephen Macedo ed., 2006).

3.      Arrest Warrant of 11 April 2000 (DRC v. Belgium), 2002 I.C.J. 3 (February 14).

4.      BBC, Sudan to ‘expel aid groups’, http://news.bbc.co.uk/2/hi/africa/7946306.stm (last visited on April 2, 2009).

5.      Cherif Bassiouni, The History of Universal Jurisdiction and its Place in International Law, UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 39, 40 (Stephen Macedo ed., 2006).

6.      Christopher Gosnell, Editorial Comment, The Request for An Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan, 6 J. Int’l Crim. Just. 841, 846 (November 2008).

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8.      DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM 35 (Princeton 2005).

9.      Diane F. Orentlicher, The Future of Universal Jurisdiction, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 214, 219 (Stephen Macedo ed., Penn Press 2006).

10.  Financial Times, League Rejects Warrant for Bashir, http://www.ft.com/cms/s/0/099275d2-1d5b-11de-9eb3-00144feabdc0.html?nclick_check=1 (last visited March 31, 2009).

11.  Hearing on the Nomination of Hillary Rodham Clinton, of New York, to be Secretary of State Before the S. Comm. On Foreign Relations, 111th Cong. § 118 (Jan. 13, 2009).

12.  Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, Foreign Affairs, Jul./Aug. 2001 at 86.

13.  International Criminal Court section on State Parties to the Rome Statute available at http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited March 17, 2009).

14.  INTERNATIONAL HUMAN RIGHTS PROBLEMS OF LAW, POLICY, AND PRACTICE 951 (S. James Anaya, Hurst Hannum, Richard b. Lillich, & Dinah L. Shelton eds., 4th ed. 2006) [hereinafter INTERNATIONAL HUMAN RIGHTS].

15.  KRISTINA MISKOWIAK, THE INTERNATIONAL CRIMINAL COURT: CONSENT, COMPLEMENTARITY, AND COOPERATION 16 (DJOF Publishing 2000).

16.  Laura M. Olson, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, American Society of International Law, 7 (March 2009).

17.  LUC REYDAMS, UNIVERSAL JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES 38 (2003).

18.  Menno Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001).

19.  PHILLIPE SANDS, FROM NUREMBERG TO THE HAGUE 188 (Cambridge University Press 2004).

20.  Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court. U.N. Doc. SC/8351 (March 3, 2005).

21.  Punishment of Grave Breaches of the International Geneva Conventions, Moniteur Belge (Aug. 5, 1993) (Belge).

22.  Regina Horton, The Long Road to Hypocrisy: The United States and the International Criminal Court, 24 Whittier L. Rev. 1041, 1066 (Summer 2003).

23.  Rome Statute art. 17, Apr. 1, 2002, http://www.icccpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm

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25.  Serious Violations of International Humanitarian Law, Moniteur Belge (Aug. 5, 2003) (Belge).

26.  STEPHEN MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW, 182 (LexisNexis 2006).

27.  Steven Ratner, Editorial Comment, Belgium’s War Crimes Statute: A Postmortem, 97 Am. J. Int’l L. 888 (2003).

28.  THE RECKONING (Skylight Pictures 2009).

29.  Tom Ginsburg, The Clash of Commitments at the International Criminal Court, 9 Chi. J. Int’l L. 499, 500 (2009).

30.  WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 67 (2d ed. Cambridge University Press 2004).

 


[1] Ron Sievert, A New Perspective on the International Criminal Court: Why the Right Should Embrace the ICC and How America Can Use It, 68 U.Pitt. L. Rev. 77, 112 (Fall 2006).

[2] Id. at 93.

[3] Id.

[4] PHILLIPE SANDS, FROM NUREMBERG TO THE HAGUE 188 (Cambridge University Press 2004).

[5] DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM 35 (Princeton 2005).

[6] Id.

[7] SANDS, supra note 4, at 188.

[8] Menno Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001).

[9] Sievert, supra note 1, at 79.

[10] Id. at 129.

[11] Id.

[12] Id.

[13] Kamminga, supra note 8, at 940.

[14] Steven Ratner, Editorial Comment, Belgium’s War Crimes Statute: A Postmortem, 97 Am. J. Int’l L. 888 (2003).

[15] Punishment of Grave Breaches of the International Geneva Conventions, Moniteur Belge (Aug. 5, 1993) (Belge).

[16] Serious Violations of International Humanitarian Law, Moniteur Belge (Aug. 5, 2003) (Belge).

[17] INTERNATIONAL HUMAN RIGHTS PROBLEMS OF LAW, POLICY, AND PRACTICE 951 (S. James Anaya, Hurst Hannum, Richard b. Lillich, & Dinah L. Shelton eds., 4th ed. 2006) [hereinafter INTERNATIONAL HUMAN RIGHTS].

[18] Financial Times, League Rejects Warrant for Bashir, http://www.ft.com/cms/s/0/099275d2-1d5b-11de-9eb3-00144feabdc0.html?nclick_check=1 (last visited March 31, 2009).

[19] KENNEDY, supra note 5, at 112.

[20] Id.

[21] Id.

[22] Id. at 115.

[23] Id.

[24] Kamminga, supra note 8, at 940.

[25] Id.

[26] Id.

[27] Cherif Bassiouni, The History of Universal Jurisdiction and its Place in International Law, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 39, 40 (Stephen Macedo ed., 2006).

[28] Id. at 40.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, Foreign Affairs, Jul./Aug. 2001 at 86.

[34] Id.

[35] Bassiouni, supra note 27, at 42.

[36] Id. at 41 (citing “Harvard Research in International Law: Jurisdiction with Respect to Crime,” American Journal of International Law 29 (Supp. 1935).

[37] Id.

[38] Id.

[39] STEPHEN MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW, 182 (LexisNexis 2006).

[40] Id.

[41] Id.

[42] Id.

[43] Id. at 184.

[44] Id.

[45] Kissinger, supra note 33, at 86.

[46] Id.

[47] Id.

[48] Anne-Marie Slaughter, Defining the Limits, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 168, 170 (Stephen Macedo ed., 2006).

[49] Id.

[50] Id.

[51] LUC REYDAMS, UNIVERSAL JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES 38 (2003).

[52] Id. at 35.

[53] Id.

[54] Id.

[55] Id. at 38.

[56] INTERNATIONAL HUMAN RIGHTS, supra note 17, at 950-951.

[57] Id.

[58] Id.

[59] Ratner, supra note 14, at 889.

[60] Id.

[61] Id. at 890.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Arrest Warrant of 11 April 2000 (DRC v. Belgium), 2002 I.C.J. 3 (February 14).

[67] Id.

[68] Id. at 22.

[69] Id.

[70] Id.

[71] Id.

[72] Id. at 25.

[73] Id. at 19.

[74] Id. at 25.

[75] Ratner, supra note 14, at 890-891.

[76] Id.

[77] INTERNATIONAL HUMAN RIGHTS, supra note 17, at 951.

[78] Id.

[79] Ratner, supra note 14, at 891.

[80] Id.

[81] International Criminal Court section on State Parties to the Rome Statute available at http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited March 17, 2009).

[82] KRISTINA MISKOWIAK, THE INTERNATIONAL CRIMINAL COURT: CONSENT, COMPLEMENTARITY, AND COOPERATION 16 (DJOF Publishing 2000).

[83] Id.

[84] Id.

[85] Tom Ginsburg, The Clash of Commitments at the International Criminal Court, 9 Chi. J. Int’l L. 499, 500 (2009).

[86] Sievert, supra note 1, at 119.

[87] Id.

[88] WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 67 (2d ed. Cambridge University Press 2004).

[89] Id.

[91] Diane F. Orentlicher, The Future of Universal Jurisdiction, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 214, 219 (Stephen Macedo ed., Penn Press 2006).

[92] SANDS, supra note 4, at 75.

[93] MISKOWIAK, supra note 82, at 50.

[94] Sievert, supra note 1, at 88.

[95] Id.

[96] INTERNATIONAL HUMAN RIGHTS, supra note 17, at 938.

[97] Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court. U.N. Doc. SC/8351 (March 3, 2005).

[98] Id.

[99] Id.

[100] CNN, International Court Issues Arrest Warrant for Sudanese President,  http://www.cnn.com/2009/WORLD/africa/03/04/sudan.president.darfur.charges/index.html (last visited Apr. 1, 2009).

[101] Aljazeera, Arab Leaders Snub al-Bashir Arrest Warrant,  http://english.aljazeera.net/news/middleeast/2009/03/2009330175846714662.html (last visited Apr. 13, 2009).

[102] Christopher Gosnell, Editorial Comment, The Request for An Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan, 6 J. Int’l Crim. Just. 841, 846 (November 2008).

[103] Id.

[104] Gosnell, supra note 102, at 847.

[105] Id.

[106] Id.

[107] Ginsburg, supra note 85, at 510.

[108] Id.

[109] Gosnell, supra note 102, at 850.

[110] Ginsburg, supra note 85, at 507.

[111] Id.

[112] THE RECKONING (Skylight Pictures 2009).

[113] BBC, Sudan to ‘expel aid groups’, http://news.bbc.co.uk/2/hi/africa/7946306.stm (last visited on April 2, 2009).

[114] Id.

[115] Id.

[116] Ginsburg, supra note 102, at 508.

[117] Id. at 510.

[118] Laura M. Olson, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, American Society of International Law, 7 (March 2009).

[119] Id.; See 22 U.S.C. § 7421 (2002).

[120] Olson, supra note 118, at 7-8.

[121] Hearing on the Nomination of Hillary Rodham Clinton, of New York, to be Secretary of State Before the S. Comm. On Foreign Relations, 111th Cong. § 118 (Jan. 13, 2009).

[122] Id.

[123] Id.

[124] Sievert, supra note 1, at 113.

[125] MISKOWIAK, supra note 82, at 47.

[126] Id.

[127] Rome Statute art. 17, supra note 90.

[128] Regina Horton, The Long Road to Hypocrisy: The United States and the International Criminal Court, 24 Whittier L. Rev. 1041, 1066 (Summer 2003).

[129] Id.

[130] Id.

[131] International Criminal Court section on State Parties to the Rome Statute, supra note 81.

[132] Ratner, supra note 14, at 888.

[133] Id.

[134] Security Council Press Release, supra note 97.

[135] Olson, supra note 118, at 16.