Current Publications: International affairs and defence

Contents

• Introduction
• The Road to Rome
• A. Pre-World War II
• B. Nuremberg and Tokyo
• C. The Cold War Stall
• D. The International Criminal Tribunals for Yugoslavia and Rwanda
• The Rome Statute and the International Criminal Court
• A. The Rome Conference
• B. The Judges and Administration
• C. Jurisdiction and the Office of the Prosecutor
• D. The Pre-Trial Chamber
• E. The Trial and Appeals Chambers
• F. Victim Assistance
• G. The ICC Today
• 1. The Democratic Republic of Congo
• 2. Uganda
• 3. Central African Republic
• 4. Sudan (Darfur)
• 5. Other Situations
• Criticisms of the International Criminal Court
• A. The Politically Motivated Prosecutor
• B. Soldiers Confused by the Laws of War
• C. A Barrier to Peace and Reconciliation
• D. The ICC Purports to Exercise Jurisdiction Over Non-Party Nationals
• E. Cost and Delay
• F. The Focus on Africa
• Where the United States Stands Today
• Parliamentary Action in Canada
• Conclusion
• Notes

The establishment of the Court is … a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.

Kofi Annan, Secretary-General of the United Nations
Campidoglio, Rome 18 July 1998

Introduction

On 11 April 2002, 10 countries ratified the Rome Statute of the International Criminal Court (ICC), bringing the total number of ratifications to more than 60 and triggering the entry into force of the Statute on 1 July 2002.(1) While Canada has been at the forefront of advocates of this historic international tribunal, a number of reservations have been expressed with respect to the Court in recent years. One prominent critic is the United States, which, despite having signed the Statute in 2000, officially renounced its legal obligations to the ICC in May 2002.

This paper will provide an overview of the development of international criminal law by tracing the historical path to the 1998 United Nations conference in Rome, where the ICC was established. It then reviews the Rome Statute and role of the ICC itself, while providing some discussion of the criticisms facing the court today.

The Road to Rome

Perhaps more than any other period in history, the last 20 years have seen momentous progress in creating the means to bring to justice those responsible for humankind’s most egregious crimes. Following the lead of the ad hoc tribunals for Rwanda and the former Yugoslavia, a permanent international criminal court has now taken concrete form. Before we examine the proposed functioning of the ICC, we will review the historical development of international criminal law, also called international humanitarian law. Having progressed from a system of impunity to one of “justice” administered by victors over the vanquished, we are now witnessing the development of what many suggest will be an impartial system of international justice on a par with the national systems of the democratic world.

A. Pre-World War II

The concept of an international criminal court can be seen as early as the 15th century,(2) but it was not until the late 19th century that what we currently understand as international criminal law began to emerge in the form of rules governing military conflict. The Brussels Protocol of 1874 was one of the earliest attempts at drafting a code regulating the conduct of armies in the field. While it made no reference to enforcement or any potential consequences of violations of the agreement, it resulted in a group known as the Institute of International Law drafting the “Manual on the Laws of War on Land” in 1880. This document was to become the model for the conventions adopted at the Hague Peace Conferences of 1899 and 1907.(3) These conventions represented major advances in international law. Most importantly, the Hague Convention IV, adopted in 1907, for the first time referred to liability for breaches of international law. While the Convention simply established state obligations, not personal criminal liability,(4) it provided the first hint of the enforcement of international norms. Before this, international obligations had always been trumped by the doctrine of state sovereignty, going back at least to the Treaty of Westphalia of 1648.(5)

During and following World War I, all combatant nations put members of enemy forces on trial for offences against the laws and customs of war. Of special note in the development of international criminal law was Article 227 of the Treaty of Versailles, which authorized the creation of a special tribunal to try Kaiser Wilhelm II.(6) While no trial ever took place, this represented a significant departure from the traditional view, still held by many today, that a head of state should be immune from prosecution by any state other than his or her own. All that occurred following World War I were some token national prosecutions in Germany, with the consent of the Allies, suggesting that the political will of the world’s major powers is essential for the enforcement of international humanitarian norms.(7)

B. Nuremberg and Tokyo

The next great impetus in the development of international humanitarian law was the global conflict from 1939 to 1945 that followed the “war to end all wars.” The Nazi government of Germany, in launching an offensive military campaign and committing startling atrocities, led the Allied powers to “place among their principal war aims the punishment, through the channel of organized justice, of those guilty for these crimes, whether they have ordered them, perpetrated them, or participated in them.”(8) In the aftermath of World War II, the International Military Tribunal sitting at Nuremberg (the IMT or “Nuremberg Tribunal”) and the International Military Tribunal for the Far East sitting at Tokyo (the IMTFE or “Tokyo Tribunal”) were established.

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason … We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.

Robert M. Jackson, US Supreme Court Justice and US Chief Representative at Nuremberg

At Nuremberg, each of the “Big Four” appointed a chief prosecutor.(9) As a team, they were responsible for investigating and prosecuting major war criminals responsible for “crimes against peace,” “war crimes” and “crimes against humanity.”(10) Following the first trial of Goering and others, the partnership of prosecutors dissolved. Disagreements over joint subsequent trials led to a compromise under which each of the four Powers was able to carry on further prosecutions within its respective zone of occupation. The United States decided to conduct twelve further trials at the Nuremberg courthouse.(11)

Trials of Japanese ministers and military leaders began in Tokyo while the Nuremberg Court was still sitting. General MacArthur, as Supreme Commander in the Far East, appointed a tribunal of a similarly international character; that is, it was composed of representatives of nations – 11 in all – that had been at war with Japan. The Tokyo Charter was almost identical to that of Nuremberg, with a few variations.(12) The Tokyo Tribunal trials lasted more than two years and all accused were found guilty. Seven were sentenced to death.

Common to Nuremberg and Tokyo were the following: there was no code of conduct for the lawyers involved; there were no specific rules of evidence;(13) and the prosecutors were directly appointed by the victorious powers, whose political goals were hardly obscure. Professor Evan J. Wallach, in a review of the post-War tribunals procedures, determined that while the defendants were usually treated fairly, the malleability of the rules left open the possibility of abuse, which did occur.(14) One example he cites comes from the testimony of the chief prosecutor in a case involving the execution of American prisoners of war by the German SS (the “Malmedy Massacre Case”). Appearing before the US Senate, Lieutenant-Colonel Burton Ellis justified conducting mock trials with real defendants, some of whom were convinced that they had actually been convicted, in an attempt to elicit incriminating statements. This, suggests Wallach, demonstrates what can happen when there is pressure to produce and a lack of structural rules.(15)

Both the Nuremberg and Tokyo trials advanced the international rule of law(16) and are commonly regarded as the archetypes of modern international criminal law. While they have established a “moral legacy,”(17) one must recognize that, especially in respect of the “international” facet, they are imperfect examples.(18) Although the judges and prosecutors were drawn from more than one country and the tribunals invoked the notion of universal jurisdiction, they were in essence military courts created by the victors whose jurisdiction was founded on unconditional surrender.(19) Many Japanese, and indeed other observers, considered the Tokyo Tribunal more vengeance than justice. The use of the atomic bomb at Hiroshima and Nagasaki was seen as a manifestation of American inhumanity and hypocrisy.(20)

The rules of procedure and evidence were even less representative of the diversity of the world’s legal systems. They were essentially devised by Americans and based on American law.(21) Despite the immense significance of the tribunals – many argue that they have stood the test of time as a fair articulation of evolving international law(22) – they were not ideal representations of what one would expect from an indifferent or unbiased tribunal. And as noted above in reference to the office of prosecutor, the lack of independence combined with unstructured rules can, and in some instances did, have a corrosive effect.(23)

C. The Cold War Stall

In 1948, the Genocide Convention(24) was adopted in response to Nazi atrocities and was among the first conventions of the United Nations to address humanitarian issues.(25) Article 1 provides that “the Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” This significant achievement, unfortunately, did not foreshadow further advances over the next four decades. Following Nuremberg and Tokyo, the UN General Assembly had given the International Law Commission (ILC) the assignment of examining the possibility of establishing a permanent international criminal court. Draft statutes were produced in the 1950s, but the Cold War made any significant progress impossible.(26) There were some trials by national courts in the post-World War II period,(27) but a permanent international criminal court was considered a pipe dream by most.

The ILC’s post-Nuremberg project was revived in 1989 via an unexpected route when Trinidad and Tobago approached the UN General Assembly to suggest an international judicial forum for drug trafficking prosecutions. The Assembly held a special session on drugs in 1989, and in 1990 the ILC submitted a report that went beyond this limited issue. The report was well received and the ILC was encouraged, without a clear mandate, to continue its project. Thus, it was able to return to the task begun in the 1940s of preparing a draft statute for a comprehensive international criminal court.(28)

There appeared to be little hope for an ICC between 1989 and 1992, but Security Council Resolution 780,(29) establishing a Commission of Experts to investigate international humanitarian law violations in the former Yugoslavia, changed all this.(30) The breakdown of the bipolar world and the increased expectations of peace with the end of the Cold War sparked a strong international response to the humanitarian crisis in the Balkans, and allowed the major powers to find common ground.(31) The creation of the ad hoc tribunals for the former Yugoslavia (ICTY)(32) and Rwanda (ICTR)(33) followed the Commission’s work and garnered worldwide recognition and credibility that gave support to the process for establishing the ICC.

D. The International Criminal Tribunals for Yugoslavia and Rwanda

It has been suggested that the ICTY was born of the frustration of having exhausted all other measures to stop a brutal war, except the measures that took too much courage, and that the ICTR was born of the guilt of having stood by while half a million were slaughtered in one hundred days.(34) The cynicism surrounding the establishment of the ad hoc tribunals was exacerbated by the fact that Rwanda voted against Resolution 955, which created the ICTR, although it subsequently agreed to cooperate with tribunal prosecutions.(35)

The ICTY was granted jurisdiction over grave breaches of the Geneva Conventions of 1949, violations of the law or customs of war, genocide and crimes against humanity. As the Rwandan crisis involved an internal conflict, although there were certainly international pressures and involvement, the ICTR’s jurisdiction was established as including genocide, crimes against humanity and violations of Article 3 common to the 1949 Geneva Conventions and Additional Protocol II.(36)

Despite some significant cynicism with respect to money spent and the ability of these tribunals to achieve true peace and reconciliation, as well as difficulties in arresting those indicted by the ICTY,(37) both tribunals have made historic progress in international humanitarian law. At the ICTY, for example, rape and enslavement have been recognized as crimes against humanity(38) and a head of state was indicted while still in office.(39) Some indictees have voluntarily surrendered to the Court, something that has shocked many observers.(40) In Rwanda, the former prime minister pleaded guilty to genocide and admitted his role in the murder of more than half a million people.(41) The 1998 Akeyesu decision of the ICTR was the first conviction by an international tribunal, including the Nuremberg Tribunal, for the crime of genocide.(42)

The ICTY and ICTR statutes set out the functions and duties of the prosecutor in much greater detail than any previous similar body. Unlike the prosecution team at Nuremberg, the prosecutors at the ICTY and the ICTR are not separate national teams of organized military lawyers with shared assumptions about legal and procedural matters.(43) The prosecution teams come from diverse legal backgrounds and justice systems. The chief prosecutor of the ICTY is appointed by the UN Security Council for a term of four years as an independent entity and cannot seek or receive directions from national governments.(44) The prosecutor’s office is distinct from the tribunal itself, but any proposed indictment must be submitted for approval by a judge of the ICTY.(45) Thus, the prosecutor’s discretion as to whom the tribunal prosecutes is tempered by judicial oversight. The ICTR prosecutor is similarly an independent organ that does not “seek or receive instructions from government or from any other source.”(46) The difference between the two tribunals relates to subject matter jurisdiction, as Rwanda was essentially an internal conflict.(47) The role of the prosecutor, however, is the same, and in each case, a chief prosecutor is responsible for the tribunal.

The ad hoc tribunals are significantly different from the Nuremberg Tribunal, which was a multilateral, not truly international, military court. It was composed of victorious allies as part of a political settlement, whereas the ICTY started functioning while conflict in the Balkans continued to rage. In Nuremberg, most defendants were in custody, and trial in absentia was permitted for those who were not. The Allies had a staff of prosecutors 100 strong and only 11 simple rules of evidence.(48) And there was no right of appeal at the Nuremberg Tribunal.(49)

The creation of the ICTY and ICTR demonstrates an evolution of the concept of an independent prosecutor. Although having greater political autonomy than their Nuremberg counterparts, the tribunals are still a creation of the UN Security Council and are beholden to it for funding and enforcement assistance. And there is, as mentioned, judicial oversight, because prosecutions require authorization. As valuable a precedent as they are, the ICTY and ICTR took two years of negotiation and preparation to establish – thereby confirming the necessity of a permanent ICC. Not only would a permanent Court avoid the time-consuming establishment process, but it could also address smaller-scale incidents that might not garner the political will to establish another ad hoc tribunal.(50)

In 1994, a draft statute for an international criminal court was submitted to the General Assembly;(51) and in 1996, the Preparatory Committee on the Establishment of an International Criminal Court was founded. An amended draft statute was submitted in April 1998, setting the stage for the five-week conference in Rome in June.

The Rome Statute and the International Criminal Court

It is easy to say, “Never again”; but much harder to make it so.

President Bill Clinton, 21 September 1999
Address to the UN General Assembly

A. The Rome Conference

As the Conference to establish the ICC got under way in Rome in July 1998, three basic groupings of states emerged.(52) Led by Canada and Norway, the “like-minded group” was arguably the most influential(53) and advocated a potent and robust ICC. It consisted mostly of the middle powers and developing countries, who generally supported a proprio motu prosecutorial model.(54) The second group consisted of the permanent members of the UN Security Council, or the “P-5,” with the exception of Britain, which had joined the like-minded states just before the conference began. Not surprisingly, this group sought a more important role for the Security Council in the establishment and operation of the Court. The United States, in particular, expressed grave concerns about the possibility of a proprio motu prosecutor and argued for the limiting of the ICC’s jurisdiction to Security Council referrals. A third non-aligned group was formed in opposition to the P-5’s insistence on the exclusion of nuclear weapons from the statute. This group included such states as India, Mexico and Egypt. However, this group’s position in respect of the independence and powers of the ICC was similar to that of the P-5.

Jurisdictional issues were the most complex and most sensitive, but the proprio motu prosecutor model did receive significant, although not general, support.(55) As the conference was nearing its conclusion and no agreement was evident, the Bureau of the Committee of the Whole(56) decided to prepare a final package for possible adoption. The alternative of reporting that an agreement could not be reached and scheduling another conference was not attractive. Many feared that a second conference stood no better chance of success and would likely result in either a weakened ICC or no court at all for years to come. By a final vote of 120 in favour, 21 abstaining and 7 against, the Bureau’s package was adopted.

The United States voted against the Statute in Rome – putting it in the company of China, Iraq, Israel, Libya, Qatar and Yemen – then signed on(57) and then, as previously noted, “unsigned.” Its expressed concerns related to jurisdictional issues and, in particular, to what the American delegation saw as a lack of accountability in granting proprio motu power to an independent prosecutor. In American Senate hearings that coincided with the conference, Senator Rod Grams called the ICC “a monster that must be slain”(58) and Senator John Ashcroft similarly denounced the ICC as “a clear and continuing threat to the national interest of the United States.”(59)

B. The Judges and Administration

The ICC is presided over by three judges – the president and two vice-presidents – elected for a three-year renewable term. They are responsible for the general administration of the court, except for the Office of the Prosecutor. The ICC’s current president is Philippe Kirsch of Canada. Beyond the presidency, the ICC is composed of 18 judges at the Pre-Trial, Trial and Appeals divisions.

The ICC’s other prime administrative body is the Registry, which is responsible for the non-judicial aspects of the administration of court.

C. Jurisdiction and the Office of the Prosecutor

Crimes within the jurisdiction of the ICC are limited by the Rome Statute to genocide, war crimes and crimes against humanity.(60) The Court will also have jurisdiction over the crime of “aggression” when a provision is adopted defining the crime and setting out the conditions under which the Court is to exercise jurisdiction in that regard.(61) Deferring the inclusion of aggression has generally been recognized as a concession made to entice broader (i.e., American) support of the Statute.(62) The Court has jurisdiction over those individuals directly responsible for committing these crimes, as well as others who may be indirectly responsible, such as military commanders or other superiors.

Jurisdiction is also limited ratione temporis to offences committed after the entry into force of the Rome Statute.(63) Article 12 restricts the ICC’s jurisdiction to crimes committed on the territory of a State Party or those committed by a national of a State Party. Noticeably absent is jurisdiction over an accused simply in the custody of a State Party.(64) An ICC investigation may be commenced either by the Security Council, pursuant to Chapter VII of the UN Charter, by a State Party or by the prosecutor acting under the proprio motu power.(65)

The prosecutor’s ability to initiate an investigation ex officio is set out in Article 15, but there are significant restrictions and oversight relating to the exercise of this purview. To begin with, the proprio motu jurisdiction is limited by the principle of complementarity. The ICC is a court of last resort, and the prosecutor must defer to a state with national jurisdiction over an offence unless that state is unwilling or unable to investigate and prosecute.(66) Moreover, if desirous of initiating an investigation without a Security Council or State Party referral, under Article 15, the prosecutor must first apply to the Pre-Trial Chamber for a ruling on admissibility.(67) Notification is required for any states that might normally have jurisdiction over the offence, regardless of whether they are a party to the Statute.(68) This provision had been proposed by the United States and was accepted by many signatory states with great reluctance as a compromise necessary to ensure the existence of the independent prosecutor.(69) Thus, the prosecutor must defer unless the Pre-Trial Chamber agrees that the state or states with national jurisdiction are not genuinely able or willing to carry out their own proceedings. The state or states concerned also have the right to appeal the Pre-Trial Chamber’s decision.(70)

To address other concerns of the P-5, Article 16 of the Rome Statute provides for the deferral of investigations or prosecutions for a period of one year at the direction of the Security Council.(71) This deferral power is renewable and, theoretically, could result in an indefinite postponement of ICC proceedings and, with the passage of time, less likelihood of conviction. Despite this oversight power lying in the hands of a small minority of the world’s nations, some critics have suggested that Article 16 does not go far enough and in fact undercuts the role of the P-5 by requiring an affirmative vote to stop the prosecutor.(72) The Security Council only has the power to allow an investigation or prosecution to continue, but not to stop one. Conversely, others have expressed fears that the Security Council’s deferral power could eviscerate the independence of the prosecutor and the Court.(73) What if, for example, a general understanding were to develop among the P-5 countries that it would not be in any one of their interests to allow an ICC investigation against P-5 nationals?

Finally, with respect to war crimes, the ICC is limited by the wording of the Statute to “grave breaches” of the Geneva Conventions,(74) “serious violations” of the listed laws and customs of international armed conflict(75) and a more limited list of offences for armed conflicts not of an international nature.(76) Moreover, Article 8 states that the Court will have jurisdiction over war crimes when “committed as part of a plan or policy or as part of a large scale commission of such crimes.”(77)

To demonstrate the extent of the constraints placed on the Court and to show that fears of a “rogue prosecutor” are misplaced, Professor Adam Roberts lists the following events and indicates whether they would, assuming temporal jurisdiction, fall within the purview of the ICC:(78)

Table 1

Event		Admissible
1968	My Lai massacre of Vietnamese villagers by US troops	Maybe (only if killings were planned or if ICC dissatisfied with US investigations)
1982	United Kingdom Royal Navy sinking of Argentine warship Belgrano	No (target was legitimate)
1991	US bombing of Amariya bunker in Baghdad	No (civilian deaths not intended)
1991 to date	Rebel killings and amputations in Sierra Leone	Yes
1992-1999	Ethnic cleansing in Bosnia, Croatia and Kosovo	Yes
1994	Rwandan genocide	Yes
1999	Kosovans killed by NATO bombs	No (civilian deaths not intended)

In respect of Professor Roberts’ determination relating to the My Lai massacre, it should also be noted that US servicemen were tried domestically and that one conviction – that of Lieutenant William Calley – resulted.(79) As such, the principle of complementarity would likely have precluded ICC jurisdiction even in such an extreme case of abuse by the American military.

At least one further protection exists. A prosecutor can be removed from office or subjected to disciplinary measures if guilty of misconduct or a serious breach of duty.(80) Complaints may be made to the Presidency of the Court, which can also initiate proceedings on its own motion,(81) and punishable conduct will include anything that occurs within the course of official duties and is either incompatible with official functions or “is likely to cause serious harm to the proper administration of justice before the Court.”(82) At least theoretically, a prosecutor who initiates politically motivated investigations that are consistently rejected by the Pre-Trial Chamber could be reined in by such a process.

It is worth noting as well, in respect of the independence of the office, that the prosecutor may refuse to pursue a state or Security Council referral if it is determined that there is no reasonable basis to proceed.(83) In such a case, the referring party may ask the Pre-Trial Chamber to review the decision and the Court may request the prosecutor to reconsider the decision.(84) In most situations, there is no statutory authority for the Court to force an investigation if, after reconsideration, the prosecutor does not proceed. However, a different process exists if the prosecutor decides not to proceed on the basis that, “taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”(85) In such a case, the matter must be referred to the Pre-Trial Chamber and a majority must confirm the decision. If the decision not to proceed is rejected, the prosecutor must continue the investigation or prosecution.(86)

Finally, it must be mentioned that Regulations of the Court,(87) the Rules of Procedure and Evidence,(88) and the Elements of Crime accompany the Rome Statute as constituting the primary legal texts of the ICC, setting out the structure, functions and jurisdiction of the Court.

D. The Pre-Trial Chamber

The Pre-Trial Chamber in large part determines the effectiveness and independence of the ICC prosecutor. Authorization to initiate an investigation proprio motu must be sought from the Pre-Trial Chamber as outlined in the Draft Rules of Procedure and Evidence. Next, victims must be informed that an investigation will take place, unless doing so would endanger them or threaten the integrity of the investigation, and notified victims may make representations in writing to the Pre-Trial Chamber.(89) The state with jurisdiction must also be notified, and such notification must contain specific information about the acts that may constitute crimes within ICC jurisdiction.(90) If the state requests that the prosecutor defer on the basis that it is conducting its own proceedings, the prosecutor can still request authorization to investigate if he or she is of the opinion that the state’s actions are not genuinely intended to bring criminals to justice.(91) The prosecutor must give notice to the state and provide a summary of the basis of the application.(92) The Court may consider whether any of the following factors are applicable in deciding to authorize an investigation over the objections of a state and its request for deferral:(93)

1. The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court;
2. There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
3. The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

So that the Pre-Trial Chamber process itself does not become a tool for a state seeking to delay or deny justice, Article 18(6) permits the prosecutor to apply for permission to take investigative steps to preserve evidence, either pending a decision on the admissibility of a case by the Pre-Trial Chamber or during a period of official deferral to the state’s national judicial system. This can be done on an ex parte and in camera basis.(94)

It is to be noted that the standard of review in the Pre-Trial Chamber does not appear to be overly onerous for the prosecutor initiating an investigation proprio motu. If there is a “reasonable basis to proceed with an investigation” and the case “appears to fall within the jurisdiction of the Court,”(95) a case is considered admissible.

In the event that a state claims to be investigating or prosecuting and on that basis asks for an Article 18(2) deferral, however, it is not entirely clear what the standard of review is. According to the Draft Rules, the state requesting a deferral must begin by providing information concerning its investigation to the Court.(96) The prosecutor may request additional information if need be.(97) The state may provide evidence that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct,(98) and the Pre-Trial Chamber will then, using whatever procedure it deems appropriate,(99) consider the factors in Article 17 of the Rome Treaty.(100)

E. The Trial and Appeals Chambers

Once charges have been confirmed by the Pre-Trial Chamber, cases are heard by the Trial Chamber, made up of three judges. At this stage the accused is still presumed innocent and has the right to defend himself or herself or to choose counsel. Victims are also invited to participate in the proceedings, if they so choose. If found guilty, the accused may be sentenced to up to 30 years’ imprisonment; in extreme circumstances this punishment may be extended to life imprisonment. Sentencing can also include reparations orders for victims.

Finally, the Appeals Chamber can hear appeals from both the Pre-Trial and Trial chambers. Made up of five judges, the Appeals Chamber has the power to overturn all kinds of lower level decisions, including reparations orders.

F. Victim Assistance

Finally, a number of mechanisms exist within the ICC and under the Rome Statute to provide assistance to victims of war crimes, genocide and crimes against humanity.

The ICC Registry administers three bodies that provide such assistance.(101) The Victims’ Participation and Reparation Section helps victims to apply for participation in proceedings or reparations, and it provides legal advice where needed.(102) The Victims and Witnesses Unit provides protection and psychological support to witnesses, victims appearing before the Court and others at risk because of their testimony. It advises Court staff on how they may ensure the salary and well-being of witnesses, and trains and assists them in this matter. It is also responsible for witness protection.(103) The Office of Public Counsel for Victims supports victims’ legal representatives and victims themselves, providing such services as research and advice. Members of the Office can also be appointed as legal representatives for victims.(104)

In addition, the Trust Fund for Victims was established separately from the ICC under the Rome Statute. The Fund began operations in early 2007 and has jurisdiction to act only in situations where the ICC itself has jurisdiction. Essentially, the Trust Fund advocates for victims, funds and implements projects supporting victims, and provides tools, assistance and expertise for victims of war crimes, genocide and crimes against humanity. In concrete terms, this means that the Trust Fund implements reparations awards ordered by the ICC; provides assistance for victims of crimes with immediate needs while trials are taking place; and, with approval of the Trust Fund Board, can even assist victims of crimes where there is no ongoing prosecution. Funding for the Trust Fund comes from State Party contributions to the Court and from reparations orders.(105)

G. The ICC Today

Since the ICC first came into existence in 2002, it has become an integral part of the international political relations and human rights systems. As of July 2008, 108 States Parties had ratified the Rome Statute, and the ICC prosecutor had taken up four country situations. Although there have as yet been no convictions, some significant work has been done.

1. The Democratic Republic of Congo(106)

One of the first country situations referred to the Court was that of the Democratic Republic of Congo (DRC), when in April 2004 the DRC government requested that the prosecutor commence an investigation. Since then, two field offices have been opened in the DRC, four arrest warrants have been issued and three accused await trial in jail in The Hague.

The trial that has advanced the furthest of any thus far is that of Thomas Lubanga Dyilo, leader of the Union of Congolese Patriots. An arrest warrant for Lubanga was issued in March 2006 and charges were confirmed in January 2007 alleging war crimes, including the enlistment, conscription and use of children under the age of 15 as soldiers. However, Lubanga’s trial has since been postponed multiple times because of concerns that the prosecutor is unable to make potentially exculpatory evidence available to the defence.(107) As a result, the Trial Chamber ordered Lubanga’s unconditional release in July 2008, although Lubanga was later ordered to remain in custody while awaiting a decision from the Appeals Chamber. In October 2008, the Appeals Chamber dismissed the prosecutor’s appeal and upheld the stay of proceedings, but nonetheless remanded the question of Lubanga’s release to the Trial Chamber for a new decision. In the meantime, Lubanga remains in custody in The Hague.

Other charges have been confirmed involving Germain Katanga and Mathieu Ngudjolo Chui. An arrest warrant was issued for Bosco Ntaganda in April 2008 for alleged war crimes. However, Ntaganda remains at large.

2. Uganda(108)

In December 2003, the government of Uganda requested that the prosecutor open an investigation into the situation in northern Uganda. Since then a field office has been established and five arrest warrants have been issued against senior leaders of the Lord’s Resistance Army, including Joseph Kony. Peace negotiations are ongoing between the government of Uganda and Joseph Kony.

3. Central African Republic(109)

The government of the Central African Republic also requested that the prosecutor open an investigation into the situation within its borders. The prosecutor commenced his investigation in May 2007 and established a field office in 2008 to provide logistical support for his operations, including witness protection. An arrest warrant for Jean-Pierre Bemba Gombo was issued in May 2008, and he is in a jail in The Hague, waiting trial.

4. Sudan (Darfur)(110)

Sudan is the only country under investigation so far that has not requested intervention. In March 2005, the United Nations Security Council adopted Resolution 1593, referring the situation in Darfur to the ICC. The prosecutor accordingly opened an investigation in June 2005, and arrest warrants were issued for Ahmad Harun (former Sudanese Minister of State for the Interior) and Ali Kushayb (a former militia leader) in April 2007 on multiple counts of war crimes and crimes against humanity. These warrants remain outstanding, as the Sudanese government is not a State Party to the Rome Statute and rejects the ICC’s jurisdiction. Since the warrants were issued, Harun has been appointed Minister of Humanitarian Affairs and Co President of the national committee responsible for investigating alleged human rights violations in Darfur.

More recently, the ICC prosecutor has asked the Pre-Trial Chamber to issue an arrest warrant for Omar Hassan Ahmad al-Bashir, President of Sudan, alleging crimes against humanity, war crimes and genocide. As of November 2008, this warrant had not been issued.

5. Other Situations

Although investigations have not begun, the ICC prosecutor is also monitoring situations in a series of other countries: Côte d’Ivoire, Colombia, Afghanistan, Chad (where a field office has been established), Georgia and Kenya.

Criticisms of the International Criminal Court

A. The Politically Motivated Prosecutor

Clearly, what many ICC opponents fear most is a prosecutor who initiates proceedings proprio motu for purely political reasons.(111) John R. Bolton, former American Permanent Representative to the UN, has suggested that the United States should be mainly concerned “for the President, the Cabinet officers who comprise the National Security Council, and other senior civilian and military leaders responsible for our defense and foreign policy. They are the real potential targets of the politically unaccountable prosecutor.”(112) However, safeguards have been built into the Rome Treaty precisely to guard against politically motivated prosecutions. International crime is inherently political. Anyone who assumes the prosecutorial role at the ICC will, of course, come with his or her political perspective on the world and its conflicts, and external political pressure may be exerted in an effort to bring a complaint when it might not be justified or even helpful in a particular political context.(113) However, several factors – notably, a process of vigorous internal indictment review, such as that in place at the ICTY and ICTR; the requirement of confirmation by a judge; and the inevitable acquittal that would result from an unfounded prosecution – likely prevent any abuse of power by a politically driven prosecutor.(114)

In fact, the ICC’s goal is to alleviate the adverse effect of political pressures in the realm of international justice. States have historically been reluctant to exercise universal jurisdiction in respect of grave crimes, due to political pressures from other states that wish to avoid exposure of their complicity. The ICC serves to shift some of this risk from individual states and thereby overcome political obstacles to prosecution.(115)

Some states also opposed the proprio motu power of the prosecutor on the ground that the office would be overwhelmed with frivolous complaints and would have to waste precious resources addressing them.(116) The real challenge, however, might actually lie in choosing from among meritorious complaints the appropriate ones for intervention, rather than weeding out the weaker ones. For example, before the appointment of the current prosecutor, more than 200 complaints had been registered,(117) but the prosecutor has been able to dispose quickly of large quantities of unsubstantiated allegations, as a large percentage do not meet the jurisdictional requirements.

B. Soldiers Confused by the Laws of War

Another concern that finds expression in the debate is that the ICC endangers soldiers because its existence will prevent them from acting when they should, for fear of potential prosecution. Those who express this opinion contend that if the prosecutor initiates proceedings without supervision by any national government, cases could be pursued without understanding the dilemmas that are faced by soldiers in armed conflict. In response to this assertion, Adam Roberts suggests that many senior UK officers take a positive view of the laws of war. This is not an isolated perspective. In the 1991 Gulf War and in the 1999 Kosovo conflict, western forces found that the law actually assists in the professional and effective conduct of military operations.(118)

In addition, Article 8 of the Rome Statute limits the prosecution of soldiers for isolated incidents, regardless of whether they might be considered criminal acts. ICC jurisdiction is meant to apply to, in particular, war crimes that are committed as part of a plan or policy or part of a large-scale commission of such crimes.

C. A Barrier to Peace and Reconciliation

Many commentators have expressed their concern that the ICC may stand as an obstacle to reconciliation and the resolution of conflicts.(119) In the past, many countries, including South Africa, Chile and, to some extent, Great Britain in relation to Northern Ireland, have granted amnesties in order to end conflicts. The fear is that as the ICC becomes involved in ongoing or recent conflicts, wars will be fought longer, peace processes will be disrupted and leaders will be reluctant to relinquish power if facing indictment. Ultimately, the argument is that removing the possibility for amnesty removes incentives for settlement, and may even encourage leaders to remain in power.

Conversely, others suggest that amnesty is not the reason that dictators relinquish power. They argue that instead, dictators leave only when they are weak and vulnerable and desperate to get whatever they can, not whatever they want.(120) Moreover, an indictment does not necessarily have a negative effect. For example, the arrest of Augusto Pinochet in London in 1998 did not destabilize Chile. Opinion polls at the time suggested that the arrest had no influence on voting intentions, that most were certain of his guilt and, although there was a preference that justice be meted out at home, most realized that this was a practical impossibility.(121) Similarly, while it cannot yet be said what effect the indictment of Milosevic had in his downfall, it arguably did not result in his clinging stubbornly to power.

During the ICC preparatory phase and in Rome in 1998, the issue of how to address amnesties was never discussed, in part due to pressure from human rights groups.(122) Significantly, Article 53 of the Statute does allow for the prosecutor to refuse to proceed with an investigation or prosecution if it would not serve the interests of justice. As discussed earlier, this decision is subject to review by the Pre-Trial Chamber.

The amnesty versus prosecution debate is at issue in at least two of the situations currently under investigation by the ICC prosecutor. In Darfur, the arrest warrant issued for the Sudanese President, al-Bashir, is feared by some as a potential threat to the peace process and as endangering humanitarian and peacekeeping operations on the ground.(123) However, others argue that the threat of an arrest warrant has encouraged the government to reach out to its domestic rivals during the conflict, thus enhancing prospects for peace. In Uganda, some observers hold that the ICC arrest warrants were critical in bringing Joseph Kony and others to the negotiating table. However, the LRA leaders are now demanding to be shielded from prosecution in exchange for their further participation in the peace process. As such, international and Ugandan opposition to the role of the ICC is mounting. Thus far, the prosecutor has refused to withdraw the warrants.

D. The ICC Purports to Exercise Jurisdiction Over Non-Party Nationals

The US government has expressed concern that the Rome Treaty purports to exert jurisdiction over US servicemen even if the United States has not ratified. In fact, following the principle of universal jurisdiction accepted under international law, any state has the right to prosecute the crimes defined in the Rome Treaty – genocide, war crimes and crimes against humanity – regardless of jurisdictional links such as nationality and territoriality.(124) The US itself has historically supported this principle: Since its beginnings in the 18th century, the US has recognized the power of its courts to prosecute individuals for the act of piracy; and by participating in the Nuremberg and Tokyo tribunals it has clearly recognized universal jurisdiction with respect to war crimes and crimes against humanity.(125) The American Restatement of Law confirms this:

A state has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction … is present.(126)

Recent US court cases have indicated an increased reliance on the principle of universality.(127) It would seem to follow that the ICC would be competent as a state to prosecute serious international crime.

E. Cost and Delay

As the ICC matures, critical voices are mounting with respect to the expense and delay involved in ICC proceedings.(128) By early 2008, the ICC had cost the international community over $600 million(129) and had yet to be anywhere near its first conviction. The Lubanga case, the case that had advanced the furthest, had essentially been derailed by late 2008. Even proponents of the ICC have begun to ask whether the ICC is losing credibility.

On the other hand, although major prosecutions proceeded slowly, things are not at a standstill. They are even beginning to move faster – between November 2007 and May 2008 almost 700 application process filings and decisions were made at the ICC; and status, rights and modalities for victim participation during investigation, and at the pre-trial and trial stage, were also determined. The problem is that success at the procedural level inevitably slows progress in the actual trials, bogging down the larger issues at play.(130) The main question is whether the ICC can retain its preventative power in the face of such delays. The ICC will remain credible only as long as it can remain a powerful symbol for deterrence.

F. The Focus on Africa

Finally, one recent concern of some significance is the ICC prosecutor’s exclusive focus on sub-Saharan Africa. A number of critics have expressed serious reservations about this practice, and voice fear about bias and the perception that the ICC is yet another instrument of foreign intervention in a long history of Western/Northern interference in African affairs. Even if various geopolitical pressures have simply made it easier for the prosecutor to begin investigations in Africa rather than elsewhere, commentators contend that this sends a negative signal about how the ICC may continue to work, and they maintain that the ICC cannot investigate African crises alone.(131)

Proponents of the ICC raise a number of explanations for the Court’s concentration on Africa. First, each of the situations under investigation has been initiated upon referral by an African government or the UN Security Council. It is difficult to claim that the prosecutor is biased against Africa in his investigations if three of the four investigations were requested by the governments of those countries themselves. The prosecutor has also noted that he has begun his investigations because it is in Africa that the breaches of humanitarian law are most severe. Sexual assault, forced displacement and massacre are issues that are present on a massive scale in the countries under investigation. He says it is only natural that they should come under investigation first. National legal systems are also weak in Africa, so the complementarity principle has led to ICC jurisdiction faster than in some other states. Finally, it is important to note that although the prosecutor has initiated official investigations in Africa only thus far, he is also seriously monitoring the situation in other countries around the world, including Afghanistan, Georgia and Colombia.(132)

Where the United States Stands Today

The American position with respect to the ICC has changed slowly since the Court first came into being. The US government has always been a staunch opponent of the ICC, particularly since President Bush formally renounced any US obligations under the Rome Statute in May 2002. As a direct result of this opposition, the president signed the American Servicemembers’ Protection Act (ASPA) into law in August 2002. This law restricts any US agency, court or government cooperation with the ICC, except when the ICC deals with US enemies; makes US support of peacekeeping missions in large part contingent on the guaranteed impunity of US personnel; and grants the president permission to free US citizens and allies from ICC custody by “any means necessary,” thus earning the legislation the nickname of “The Hague Invasion Act.”(133)

Once the ASPA was enacted, the US government immediately began negotiating bilateral immunity agreements with nations around the world in apparent accordance with Article 98 of the Rome Statute. States that signed these agreements had to promise not to surrender Americans on their territory to the ICC. Subject to a national interest waiver, the ASPA then denied US military assistance (education and training, and financing) to states that had not signed such agreements (except NATO members, major non-NATO allies and Taiwan). Many governments thus effectively had the ASPA held over their heads. In December 2004, the US government added the Nethercutt Amendment to this arrangement. The Amendment was part of an omnibus appropriations law that went beyond military assistance to also deny a broad range of aid (through the Economic Support Fund) to states that refused to sign the immunity agreements.(134)

As of December 2006, over 100 immunity agreements had been signed. Fifty-six States Parties had not signed the agreements, including Canada, the United Kingdom, France, and a number of Latin American countries. As a result, 24 States Parties lost US aid in the 2005 fiscal year.(135)

However, the US position on the bilateral immunity agreements began to soften in 2006. Amendments were made to the ASPA in 2006 and 2008, lifting restrictions on foreign military assistance to countries that had not signed such agreements, and a number of waivers were issued. The US government also generally stopped requesting immunity agreements of States Parties. All that remains of these restrictions today are the Nethercutt restrictions on aid to those countries that have not been granted a waiver.(136)

US personnel are also no longer immune from the ICC when involved in UN missions. In 2002 and 2003 the US government secured a UN Security Council Resolution (1422) that effectively gave immunity to personnel from non-Rome Statute States Parties involved in UN missions. However, that Resolution expired in 2004 and has not been renewed since.(137)

Ultimately, the US government’s position with respect to, and argument against, the ICC has been weakened since 2002. Thus far there has been no evidence of a politically motivated prosecutor attempting to pursue US personnel or interests. As well, US opposition to the ICC resulted in a souring of relationships between the US and other countries, which has recently begun to change as the US has begun to re-evaluate its position and slowly softens its opposition to the Court.(138)

Parliamentary Action in Canada

Bill C-19, the Crimes Against Humanity and War Crimes Act, received Royal Assent on 29 June 2000, enabling Canada to ratify the ICC Treaty soon thereafter, on 7 July 2000. The Act implements Canada’s obligations under the Rome Statute and enhances Canada’s ability to prosecute war crimes and crimes against humanity under the Criminal Code.(139)

Conclusion

Despite criticism of the ICC, it is important to remember that the Court is a “baby” institution – essentially the first of its kind. Building upon the history of Nuremberg and the ICTY and ICTR, the ICC is dealing with complex humanitarian law issues in a way that could not even have been contemplated 50 years ago. International criminal law has grown in leaps and bounds in the last decade. Trials may be slow and costly, but the mere fact that they are occurring is a milestone. The success of the ICC needs to be judged long-term instead of by short-term actions. It is a body that is slowly but surely showing that it can work, together with national and regional courts, truth and reconciliation commissions and other peace and justice processes, to create a powerful role for international criminal law.(140)

---

Notes

†  Library of Parliament Background Papers provide in-depth studies of policy issues. They feature historical background, current information and references, and many anticipate the emergence of the issues they examine. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner. [ Return to text ]