The International Criminal Court and the ‘Uneasy Revolution’ in international society

Abstract

Click to increase image sizeClick to decrease image size Acknowledgement The author would like to thank Hugh Dyer and David Galbreath for their helpful comments. Notes Sam Zia-Zarifi, ‘Who's Afraid of International Relations?’ Leiden Journal of International Law, Vol.13 (2000), pp.1015–24. Ibid. Tam Dalyell, ‘Blair, the War Criminal,’ The Guardian, 27 March 2003; see also Richard Tyler, ‘Greek Lawyers to Sue Blair for War Crimes’, World Socialist Web Site, 2 June 2003, found at www.wsws.org See Yoram Dinstein, ‘The Distinction between War Crimes and Crimes against Peace’, Israel Yearbook on Human Rights, Vol.24 (1995), pp.1–17. Of course, the unilateral resort to force does not necessarily qualify as aggression. A state may claim that a unilateral act is lawful under customary international law, for instance in the case of humanitarian intervention, or to uphold prior resolutions adopted under Chapter VII of the Charter. In adopting the latter argument the UK government followed a similar line of argument to that used to justify NATO action in Kosovo in March 1999. See Constantine Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’ Journal of Conflict and Security Law,Vol.6 (2001), pp.33–62. ‘Treaty of Peace with Germany’, American Journal of International Law, Vol.13 (1919), p.250; see also ‘International Military Tribunal Judgement and Sentences’, American Journal of International Law, Vol.41 (1947), pp.172–332. See Broomhall, (under review) pp.46–7; Sadat (under review) pp.132–8. Sadat (under review), pp.132–3. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in Cassese et al. (under review), p.428; see also A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in Cassese et al. (under review), p.10, fn.23. Dalyall, ‘Blair the War Criminal’ (note 3). Sadat, p.xiii. The ICC assumed non-retrospective jurisdiction over genocide, crimes against humanity and war crimes on 1 July 2002. This was following the 60th ratification of the Rome Treaty earlier that year. The Rome Statute reaffirms the illegality of aggression in principle but specifies in Article 5 that the Court may not exercise jurisdiction until the Assembly of State Parties is able to define it and not within seven years of the Statute entering into force. This political compromise allowed some commentators to claim that the Court exercises ‘dormant jurisdiction’ over the crime of aggression. Kirsch and Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), p.78. Marc Weller echoes Sadat in calling the Rome Conference ‘a constitutional moment’. He writes, for instance that the Conference ‘exercised the function of an international constitutional convention’. See ‘Undoing the global constitution: UN Security Council action on the International Criminal Court’, International Affairs Vol.78 (2002), pp.693–712. With the definition of a state's right of self-defence expanding following the use of force after September 11th it is likely that a consensus on aggression is even further away. On the right to self-defence see M. Byers, ‘Terror and the Future of International Law’ in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (Basingstoke: Palgrave, 2002), pp.118–27. Sadat (under review), p.9. Sadat, (under review), pp.8–9. See also L.N. Sadat and S.R. Carden, ‘The New International Criminal Court: An Uneasy Revolution’, The Georgetown Law Journal, Vol.38 (2000), pp.381–474. K. Sengupta, ‘Guilty of War Crimes – or Victim of a Feud with US Soldiers?’ The Independent, 22 May 2003; Richard Norton-Taylor, ‘Soldier Arrested over Iraqi Torture Photos’ The Guardian, 31 May 2003. M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to extradite or prosecute in international law (Dordrecht: Martinus Nijhoff, 1995) Broomhall (under review), p.4. On this use of Grotian solidarism see F. Mégrét, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law, Vol.12 (2001), pp.247–68; see also Bassiouni and Wise (note 16), pp.22–42. Broomhall (under review), p.105. Ibid., p.59. Ibid., p.106. See also William Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes” ’, Journal of International Criminal Justice, Vol.1 (2003), pp.39–63. Broomhall (under review), p.109. Ibid., p.112. See also Holmes, ‘National Courts versus the ICC’ in Cassese et al. (under review), pp.667–8. Antonio Cassese, ‘From Nuremburg to Rome: International Military Tribunals to the International Criminal Court’, in Cassese et al. (under review), p.18. See Sadat, pp.21–46; Broomhall, pp.71–6. Cassese (note 24), p.15. Ibid., p.16. James Crawford, ‘The Work of the International Law Commission’ in Cassese et al. (under review), pp.23–34; see also Adriann Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, In Cassese et al. (under review), pp.35–65. Sadat (under review), pp.11–12. See P. Kirsch QC and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), pp.67–91. Ibid., p.88. W.R. Pace and J. Schense, ‘The Role of Non-Governmental Organization’, in Cassese et al. (under review), pp.105–43. Ibid., p.137. Sadat (under review), p.5. Broomhall (under review), p.5. Mégrét (note 18), p.258. Sadat (under review), p.103. Mégrét (note 18), p.258. For a commentary on the origins of complimentarity and the relevant Articles of the Statute see John T. Holmes, ‘Complimentarity: National Courts versus the ICC’, in Cassese et al. (under review), pp.667–86. Rome Statute, Article 17, accessed at http://www.un.org/law/icc/statute/romefra.htm. J. Ralph, ‘Between Cosmopolitan and American Democracy: Understanding American Opposition to the International Criminal Court’, International Relations Vol.17 (2003), pp.195–212. The term ‘new sovereigntist’ is Peter J. Spiro's. See his ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’, Foreign Affairs, Vol.79 (2000), pp.9–15. In May 2002 the Bush administration ‘unsigned’ the Rome Treaty. In a public statement explaining US policy, Under Secretary of State Marc Grossman stated that the US remained ‘committed to promoting the rule of law and helping to bring violators of humanitarian law to justice, wherever the violations may occur.’ Remarks to the Center for Strategic and International Studies (CSIS), Washington, DC, 6 May 2002, accessed at http://www.state.gov/p/9949.htm. The US government opposes the Rome Statute, however, because it has delegated jurisdiction to an unaccountable court. In other words the US does not necessarily oppose universal jurisdiction for core crimes, but it has insisted that such jurisdiction can only be enforced by national courts. This position can be found in D.J. Scheffer, ‘Staying the Course with the International Criminal Court’, Cornell International Law Journal, Vol.35 (2002), pp.47–100. See also R. Wedgewood, ‘The International Criminal Court: An American View’, European Journal of International Law, Vol.10 (1999), pp.93–107. The subject is addressed in the Cassese volume by Hans-Peter Kaul who was Deputy Head and Head of the German Delegation to the Rome Conference and Preparatory Committee respectively. He argues that ‘the idea of universal jurisdiction entitles states to do collectively what they have the power to do individually’. States ‘may confer this individual power on a judicial entity they have established and sustain together and which acts on their behalf.’ He argues that the principle of universal jurisdiction for the core crimes is well established in customary international law. ‘Consequently, States have a legitimate and acknowledged legal basis to use, if they so wish, the universality approach with regard to core crimes, either in their national criminal jurisdiction or when establishing together a new and complimentary international criminal justice system as during the UN negotiation for the ICC.’ Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (under review), p.591. America's pressure on Belgium to repeal legislation providing for universal jurisdiction suggests that the US statement supporting universal jurisdiction enforced at the level of the state is merely a rhetorical strategy to disguise a policy that puts American national interests ahead of the universal interest. See C.S. Smith, ‘Rumsfeld says Belgian law could prompt alliance to leave’, International Herald Tribune, 13 June 2003’, and ‘Belgians are incensed by American pressure on war crimes law’, International Herald Tribune, 14 June 2003. Broomhall (under review), p.93. See also Jan K. Kleffner, ‘The Impact of Complimentarity on National Implementation of Substantive International Criminal Law’, Journal of International Criminal Justice, Vol.1 (2003), pp.86–113. Darryl Robinson, ‘The Rome Statute and its Impact on National law’, in Cassese et al. (under review), pp.1849–50. Luis Moreno Ocampo, an Argentinian lawyer who helped bring the leaders of his country's former military dictatorship to justice was elected as Prosecutor in March 2003. For detailed commentary on these procedures see Olivier Fourmy, ‘Powers of the Pre-Trial Chambers’ in Cassese et al. (under review), pp.1207–30. P. Kirsch, QC and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese et al. (under review), p.662. For similar arguments see Fernandez de Gurmandi, S.A., ‘The Role of the International Prosecutor’, in Roy Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), pp.175–88. See Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). Grossman, ‘American Foreign Policy and the International Criminal Court’ (note 42). For this see Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). See also David P. Forsythe (2002) ‘The United States and International Criminal Justice’, Human Rights Quarterly, Vol.24, pp.974–91. Broomhall (under review), p.68. At the time of writing 90 of the 139 signatories had ratified the Rome Treaty. Sadat notes that opponents of the idea of an independent Prosecutor included not only the US, but also the Russian Federation, China, France, Israel, India, Malaysia, Egypt and Syria. The UK, she notes, was initially undecided. Its decision to join the Like-Minded Groups was a pivotal moment in the history of the negotiations. Sadat (under review), p.94. Rome Statute, Article 16 (note 40). D.J. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, Vol.93 (1999), p.18. Kaul (note 42), p.600. Rome Statute, Article 12 (note 40). Not only did the US vote against the Treaty at the Rome Conference, it has since pursued a strategy to exclude American citizens from the Court's jurisdiction. On the use of Article 16 to negotiate exemptions for UN personnel see C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’, European Journal of International Law, Vol.14 (2003), pp.85–104; on the use of Article 98 to negotiate bilateral agreements promising US citizens immunity from ICC jurisdiction, see S. Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, Vol.1 (2003), pp.114–34. Kaul (note 42), p.607. Sadat (under review), p.118. Ibid., p.106; see also E. Wilmshurst, ‘Jurisdiction of the Court’, in Lee (note 48), pp.127–42. Sadat (under review), pp.120–21. Rome Statute, Article 72 (note 40). H.J. Behrens, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’, in Roggemann and S˘arccˇevicˇ (under review) pp.116–17. Rome Statute Article 72 (note 40). W. Schabas, ‘National Security Interests and the Rights of the Accused’, in Roggemann and [Sbreve]arcčevič (under review), p.113. Rome Statute, Article 66 (note 40). Schabas (note 65), p.109.