Factors limiting International Criminal Court operations

In the past, the International Court of Justice and other criminal tribunals such as the Nuremberg court or International Criminal Tribunal for Yugoslavia and Rwanda (ICTY and ICTR) have served as important components of the legal process in the prosecution of war crimes. But their effectiveness diminished when individuals and government leaders perpetrated heinous crimes in the post-cold war era. For this reason, the United Nations and international community (Roach, 2006:pp 27-32) established permanent global criminal courts that dealt with the worst crimes against humanity. The current International Criminal Court (ICC) was established on July 1, 2002 and works as a permanent criminal court to prosecute individual criminals that have been charged with war crimes, crimes against humanity, genocide, or crimes of aggression (Articles 6-9) as they are defined in the Rome Statute. Recently, it has become increasingly difficult to ignore debates about the feasibility and effectiveness of the ICC as an effective global instrument for the promotion of criminal justice.

This review provides an overview and analysis of the ICC’s role as a positive contributor towards the development of a system of global governance, highlighting its impact and evaluating current limitations. The first section of the review provides a brief history of the ICC and subsequently explores its institutional character as a new supranational organisation in international politics. The discussion then assesses to what extent the ICC is considered as a component of global politics by analysing it in the context of how global politics are defined and conceptualised. In the second section, the review addresses challenges to the ICC and the Rome Statute, which limit the feasibility of the court’s jurisdiction. In examining these limitations, I shall: (1) look at the opposition of some of large nations to the ICC, in particular with a focus on US objections to the court; (2) Within the context of the this discussion, I will then focus on the academic debate of state sovereignty versus universal jurisdiction in order to examine whether the ICC is old wine in a new bottle or an innovative approach to international criminal law which enhances human security. In coming to a decision about the underlying effectiveness of the ICC, the ultimate aim of my discussion, I shall defend my arguments on permanence and the complementary principles of the ICC and Rome Statute that are effective in protecting civilians from genocide, mass atrocities and ethnic cleansing. Throughout the course of the essay, I will compare and contrast limiting factors with the strengths of the institution. Finally, I will conclude by assessing the strengths and weaknesses of the ICC and consider its role as a tool of global governance.

The idea of establishing an International Criminal Court began at the Hague Conference in 1897 when the most powerful states gathered to discuss the customs of war and the adoption of new rules concerning its conduct (Roach, 2006). In 1907, nations ratified a Convention on the Peaceful Settlement of International Disputes to proscribe war crimes and to protect civilians. Later, the League of Nations addressed the issue of establishing new proposals containing various international rules of individual culpability for human rights’ abuses and crimes of aggression. The Versailles Treaty parties appointed a Special Commission on War and Enforcement of Penalties for causing war (Roach, 2006). Unfortunately, this idea was rejected by nation states, as agreement could not be reached on what constituted a ‘standard of humanity’. Until the establishment of the Rome Statute in 1998, there were several versions of criminal courts established which failed for the same reason. The Nuremberg and Tokyo trials were established by super powers and their interest in controlling the international court for their own political ends led to the establishment of International Military Tribunals to investigate perpetrators of war crimes.

Another failure of the ICTY and ICTR was that they had limited jurisdiction in terms of geography and demography and were dependent on the political will of the international community. They were also costly and too cumbersome (Roach, 2006). In 1995, the UN discussed the draft Statute prepared by the ILC for an International Criminal Court. During the next two years, the UN held six Preparatory Committee meetings on the ICC for governments to discuss the full range of issues involved in the establishment of such a Court. The ICC thus became the first permanent international treaty-based criminal court. It was established by the Rome Statute in 1998 which came into force in 2002 after being ratified by 60 States (Michael, 2008). The Rome Statute established the court and gave it jurisdiction over persons “for the most serious crimes of international concern" as provided for in the terms of the treaty (Article 1). It also gave the court an international legal personality (Rome Statute Article 4 and Michael, p8)

The ICC is an independent court and is not part of the United Nations, though it does have a “cooperative relationship" with the UN (Article 4). It is funded primarily by the parties of States subscribing to the Rome Statute, and also receives contributions from international organisations, corporations, and individuals (Article 2). The ICC has jurisdiction over crimes committed in or by States. It tries cases of “the most serious crimes of international concern," specifically crimes against humanity, war crimes and genocide. The ICC is a “court of last resort" and will only try cases that cannot be dealt with by national judicial systems. The following section examines the role of the International Criminal Court as a global governance tool.

The question posed at the start of the discussion: “Is the International Criminal Court a mechanism of globalised governance?" necessitates the exploration of the theoretical and somewhat academic argument of the meaning of “global governance". The term was almost unknown at the start of the decade but by the dawn of the new century, it had become a ubiquitous catchphrase. (Rawkin, 2007). Historically, non-governmental organisations do not figure in the Westphalian state system model, but they significantly affected the development of the ICC and they continue to be influential in its operation (Shawki and Coxi, p64). According to some commentators, the universality of human rights’ norms and international criminal law impel NGOs to engage states’ adherence to universal values. Risse and Sikkink (1999) claim that these universal values constitute the first stage of changes in state behaviour. They point out that, in the case of the ICC, international organisations, NGOs and global civil societies have closer inter-relationships than any other international organisations (Schiff 2008 in Shawki et al). To clarify this statement, Schiff explains that legal experts in the 1970s primarily undertook the drafting of the ICC. Later, organisations which campaigned for human rights such as Amnesty International, the World federalist movement, Human Rights Watch, the NGO Coalition for ICC (Shawki and Coxi, p64) and humanitarian organisations actively engaged with the establishment of the ICC, which reached the mainstream of international human rights activism in the 1990s.

Mainstream schools and academia, particularly Foucauldian scholars, explain global governance in terms of populations and structures of production and consumption and thus political relations have been conducted on a global scale in the past 20 years (Hewson, 1999). Similarly, several scholars define the notion of global governance as a process that creates ordered rule and collective action within the political realm (Stoker 2004 in Chukereke) and explain it in the context of the sum of many individuals, states and multi-level actors managing common affairs across state boundaries. Rosenau (1992) defines global governance in terms of numerous activities in the establishment of international rules and shaping policy through “on-the-ground" implementation, formal authority often being sidelined in the operation of such activities. In this regard, the structure and operation of the ICC can be seen in the context of a global or international system of states that sets the parameters of international criminal justice in prosecuting perpetrators of crimes against humanity.

More recently, literature has emerged that presents contradictory debates about the feasibility of ICC operations. Opponents of the ICC claim that enforcement of international criminal law is always and everywhere a political activity. Some scholars view that ICC prosecution is politicised when prosecutors decide to investigate a case (Roach, 2006). For instance, there is a view that the ICTY and ICTR or the Nuremberg and Tokyo trials were clear examples of politicised prosecution of specific states and were highly dependent on the political will of the international community known as Victor’s Justice (Roach, 2006) rather than in focusing on protecting human rights. However, this claim is undermined by the view that there is no such thing as a judicial system that operates completely free of political constraints. By and large, the ICC as a politicised international organisation and the constraints and limitations that will set its agenda are different in kind from the political circumstances of the Nuremberg or Tokyo tribunals.

As this argument is not the main focus of this review, I note that the most significant discussion on the court’s effective jurisdiction has been related to state sovereignty versus universal jurisdiction in relation to the position adopted by large nations. I now address to what extent the issue of jurisdiction, as set out in the Rome Statute, contradicts with the notion of state sovereignty that has been applied to nation states since the introduction of the Westphalia system and how it clashes ideologically with the permanence of the ICC in relation to the court’s jurisdiction. I then examine the United States’ objections (Johnstone, 2011), as one of the major challenges to a fully effective international court. The vast majority (a large proportion of the world’s population is living in a country that has opposed the ICC treaty: Russia, China, India and the USA) of the world does not agree, nor is signed up to the ICC. The US objection to the court has been identified as a major contributing factor in limiting the ICC’s credibility and inhibiting the expansion of the court’s effectiveness in gaining prosecutions. The key objections of the US to the court are as follows:

Politicised Prosecution and unaccountable prosecutors.

The Bush administration withdrew from the ICC, afraid that the court would be used politically against Americans. However, according to Article 37 of the Rome Statute, safeguards are in place against politically motivated prosecutions, which means that a selection of the prosecutors are highly qualified lawyers of international legal repute, so their integrity and diversity provide a self-corrective mechanism within the court. Also, the Rome Statute constitutes that the ICC would only investigate cases involving US nationals if the US failed to investigate and, where appropriate, prosecute the individuals responsible.

The International Criminal Court’s jurisdiction contradicts with US hegemony.

Referring to the US objection, Mandel (2004) points out that American desire for a permanent ad hoc court is similar to previous criminal Tribunals in dealing only with specific conflicts and regimes that can be activated by the UN Security Council on a case-by-case basis. Rawkin (2007), however, argues that constitutional democracy is only possible in a world of sovereign states and observes that joining the Rome Statute would violate the US Constitution and undermine US citizens’ rights. His claim denies that global governance is a necessary precursor to the abolition of American independence. However, a weakness of his claim is its tendency to deny international law, treaties and international agreements collectively as "global governance". On the other hand, America’s hegemony is evident in many international negotiations; one clear example is in the creation of the Kyoto protocol, which the ICC and then the US declined to sign or ratify. Critics often attribute this conduct to the arrogance of a superpower, which finds it easier to insist on its own preferences.

State sovereignty versus universal jurisdiction.

It has become popular in recent years to suggest that state sovereignty, as a phenomenon in the international legal system, is in decline. (Rosenau, 1990, cited in Michael). State sovereignty, however, remains an anarchical feature of international relations. Historically, individuals were not recognised as subjects of international law, and it was assumed that only states, and not individuals, had rights and obligations under international criminal law. The concept of state sovereignty was influential in the past because another state or military allies of several states generally threatened the security of the state or state regime. At the end of the 20th century, the concept of contemporary wars is considerably different from the nature of old wars where the former include violence and mass atrocities against civilians in which their basic human rights are disregarded, for instance as a result of terrorism and ethnic cleansing. Consequently, the Rome Statute considers that genocide, crimes against humanity, crimes of aggression and ethnic cleansing are political offences, so both legal and political factors come into play when ICC prosecutors prosecute crimes. Earlier, I addressed the US objections to the Court; many analysts are critical of these objections and I now offer further viewpoints in exploring those limitations.

By way of illustration, contemporary globalised politics enables governance to have a broader scope than government. It can reach behind structures of governmental control to undertake global activities in ways that governments are not able to do. Byers (1999) argues that powerful states tend to be more engaged in the international system, and therefore their acts have a disproportionate impact on the evolution of customary international law. Additionally, they tend to maintain larger diplomatic corps that give them added influence in bilateral and multilateral treaty drafting. Therefore, sovereignty can simply be transcended. The US opposition to the ICC because it limits the sovereign rights of the parties of non-states is unpersuasive (Scheffer 1999b). To interpret this view in the operation of the Rome Statute, the essential impact of universal jurisdiction on the sovereignty of non-state parties is that nationals of such states who commit crimes on the territory of states party to the ICC statute could potentially be punished for their crimes by the new international court. On the other hand, constructivist scholars of international relations have argued that, since WWII, the obligation of sovereign states to protect the individual human rights of their citizens has become essential in the legitimisation of the existence of the international state system itself (Reus-Smit 2001). I personally agree with this anti-colonial stance that sovereignty is incompatible with the universal rights of human beings. Another pragmatic argument offered by Elgar, (1992) is that effective sovereignty requires the sharing of state powers in some scheme of supranational governance. Therefore, the establishment of the ICC does not radically undermine the concept of state sovereignty; instead, the court’s last resort principle stipulates that the court will undertake criminal cases when national jurisdiction is failing or is unwilling to prosecute war crime perpetrators.

The International Criminal Court is (1) the only and permanent body of international criminal law; and (2) the complementary principle that the ICC is a court of last resort.

As a standing judicial institution, the ICC does not require the level of political investigation that ad hoc courts need before they can proceed with each case (Michael, 2008). Moreover, as a standing institution, the ICC promises a permanent commitment to punish these crimes consistently, at least among the large group of states that have agreed to ratify the Rome Statute. It simply means that the central effectiveness of the court’s legitimacy and jurisdiction is endorsed. Another important argument is that the Court operates effectively because it is independent of political influence. For instance, in the past, former tribunals and trials dealt with crimes committed in the past but the ICC prosecutes cases that are ongoing. Beigbeder (1999) described the ICTR and ICTY as dealing with “hidden, denied and unpunished mass crimes" Therefore, the permanency of the ICC enables it to avoid many of the criticisms of ad hoc war crimes’ tribunals. The ICC’s complementarity provisions ensure that national tribunals or courts in third states continue to play an important role. This means that the ICC will not intervene when national judicial systems are functioning effectively and will only get involved if the national judiciaries are unable or unwilling to take action on cases of mass atrocity, which are mercifully relatively rare. All four cases, as described in the Rome Statute (except for the crime of aggression), have been prosecuted by concerned states; the ICC itself has not taken up any cases as yet.

The International Criminal Court promotes justice over weak nations and human rights

Apart from objections from large nations as such America, India and China, prosecutions within the International Criminal Court promote justice for weak nations – the so-called “global south". A crucial context for the effectiveness of this initiative was the repeated experience of peoples around the world of the excesses of state-sponsored or political leader executed violence in the 20th century. People and their leaders in Latin America, Africa, Asia, and across Eastern Europe are far too familiar with the forced disappearances, summary executions and targeting of civilian populations that comprise the crimes covered by the ICC’s jurisdiction. In particular, the peoples of African countries, namely Sudan, Somali, Rwanda and more recently, Libya, exhausted from endless genocide and ethnic cleansing, can seek redress from the ICC. In cases where the present government is reluctant about, or even opposed to, cooperating with the ICC, other states are able to bring sufficient pressure to bear to ensure cooperation. That means, even without superpower support, middle-sized or small states can co-operate to compel cooperation with the ICC. (Michael, 2008)

Legally and politically, then, the International Criminal Court is a new institution compared to other criminal courts such as the International Court of Justice and other criminal tribunals. However, the ICC has faced challenges and questions over whether it is effective or not and its limitations have been explored. There have been debates, some of them ongoing, about its universal jurisdiction over state sovereignty as well as objections from large nations like the United States. By and large, the ICC is still a political instrument that needs to be understood as a component of global governance. Another important factor which lack of space prevents being developed here is that the ICC has special status for women and children - protection of victims is high priority in crime investigation and witnesses can participate in the proceedings on their own behalf, even when not called to give evidence.

In addition to institutional and judicial advancement, the ICC process is perhaps the most innovative and comprehensive device for the prosecution of individuals who commit war crimes, crime against humanity and genocide, as defined by international criminal law.

It is my view that the Rome Statute is the most well-developed international instrument ever negotiated, with its deep concern for state sovereignty supported by the highly technical provisions drawn up within international criminal law. Although it has only been 9 years since the ICC was fully implemented, it is an ultimate and relatively sophisticated institution that enables governance and jurisdiction to promote and protect human security. The establishment of the court has focused on the central issue of the human rights agenda as proclaimed in the United Nations Charter, Article 1. After the Universal declaration of Human Rights in 1948, the Rome Statute has reached the point where individual criminals can be held accountable for mass atrocity, crimes against humanity and mass violations of human rights.