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Security Council No More Getting Away with Murder?
Dominic McGoldrick
Life and Peace Institute
February 10, 1999
On 17th July 1998, a six-week diplomatic conference in Rome ended with the adoption of the 'Statute of the International Criminal Court' (ICC). 120 states voted in favour of the Treaty (including UK, France, Russia), 7 voted against (US, China, Libya, Iraq, Israel, Qatar and Yemen), and 21 abstained. The Statute was immediately open for signature and by December 1998 it had already attracted 64 signatures. It will require 60 ratifications before it enters into force. Given that 120 States voted in favour of the Statute, entry into force might be envisaged within 5 years, even given that some national legislatures may be hostile.
The substantial impulse towards completion of the ICC project was sadly provided by the massive and systematic human rights violations in Former Yugoslavia and in Rwan-da. Whatever one's judgement on the effectiveness of these two fora, they have clearly displayed the practical possibilities for international criminal tribunals. Whatever the relative strengths and weaknesses of the ICC, there was widespread recognition that the agreement on the Statute represented an historic step for the international community in general, and for international law and international justice in particular, by filling a gap in the international legal order.
The major aim in establishing an ICC was to end the perceived culture of immunity for serious international crimes, and thereby promote international justice and re-conciliation. The Conference faced substantial political and legal challenges. Among these were: determining the appropriate procedures and systems from among the range of the world's legal systems, for example, whether the system would be adversarial or inquisitorial; achieving the necessary precision deman-ded by criminal law and standards required by modern criminal justice; resolving major differences over jurisdictional requirements and the role of a Prosecutor; extending the ICC's jurisdiction to non-international armed conflicts; and reflecting gender concerns and the concerns of victims across all aspects of the ICC. There was also the general strategic issue of whether it would be better to agree a strong ICC, which might only attract a few state parties, or a weak, ineffective ICC, which might secure wide participation.
The ICC is only intended to exercise jurisdiction in relation to the most serious crimes of international concern. Moreover, it is specifically designed to be complementary to national criminal justice systems. Essentially, the intention is that the ICC will only be brought into play where the national judicial institutions were unable or unwilling to act. The inability might be the result of internal conflict (e.g. Somalia, Rwanda, Sierra Leone) or the dissolution of a state. The unwillingness might be where a state was unwilling to prosecute its own nationals (former Yugoslavia) or in the context of state agents being the alleged offenders. In structural terms it is better to conceptualise a relationship in terms of the ICC and national courts co-existing at a horizontal level rather than the ICC being in any way superior to or in a vertical relationship with them. The ICC is to be established at The Hague though there is provision for it to sit elsewhere. It will have international legal personality but, importantly, it will not be a UN body.
The ICC will consist of three branches, judicial, investigatory and prosecutorial, (the Office of the Prosecutor) and administrative (the Registry). The 18 full-time judges are to be elected by the Assembly of States Parties. The Prosecutor acts independently as a separate organ of the ICC. The Prosecutor will appoint advisors with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children. One of the functions of the Registrar is to set up a 'Victims and Witnesses Unit' within the registry. Interestingly, there is no Office for the Defence although many NGOs argued that there should be such as office.
The rules of procedure and evidence, which can be of critical importance in practice, are to enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. It is significant that they are so adopted, with political control remaining with the States, rather than being adopted by the ICC itself. The ICC's jurisdiction is limited to the 'most serious crimes of concern to the international community as a whole'. The specific crimes over which the ICC has jurisdiction are: genocide; crimes against humanity; war crimes; and aggression.
Genocide
The definition of genocide is drawn from Article 2 of the Genocide Convention 1948 and therefore requires a very specific intent, which is very difficult to prove.
Crimes against humanity
Article 7(1) provides that for the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Crimes against humanity do not now appear to require any connection with an 'armed conflict'. This is a reflection of the development of international law as indicated in the decision of the Yugoslav tribunal in the Tadic II case.
War Crimes
Under Article 8(1) the ICC has jurisdiction in respect of war crimes 'in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes'. There is a special provision in the Statute, which allows a state party to opt-out of this jurisdiction for seven years. It appears that the UN Security Council (SC) can override the opt-out if it refers a situation to the ICC. Article 8(2) provides an extensive list of war crimes 'for the purposes of this Statute'.The ICC deals in turn with international armed conflicts (Article 8(2) (a) and (b) and non-international armed conflicts (Article 8(2) (c) and (e)). The inclusion of the latter provisions was the subject of ma-jor controversy at the Rome Conference. A minority of States wanted non-international armed conflicts excluded or subjected to only limited provisions. Until recent years it was generally assumed that violations of international humanitarian law committed in non-international armed conflicts did not give rise to individual criminal responsibility in international law as war crimes. That view has effectively been reversed and the general principle of international criminal responsibility in non-international armed conflicts is now written into the Statute of the ICC. Given that the vast majority of modern conflicts are non-international their inclusion in Article 8 is of major significance. Once included, the issue becomes that of determining what offences are covered. The specific offences are spelt out in great detail. In principle, the aim was to determine which provisions of international humanitarian law had the status of customary international law. Some States, and particularly India, wanted specific reference to the use of nuclear weapons, land mines and blinding lasers as war crimes. No such specific references were included.
Aggression
The addition of a crime of aggression was extremely controversial both in terms of its definition and in terms of the relationship between the ICC and the SC. Given the nature of the offences within the ICC's jurisdiction it is likely that the same matter will be on the agenda of the SC given its responsibility for international peace and security.This controversy is partly reflected in Article 5(2). This provides that the ICC shall only exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with the provisions on amendment and review, which defines the crime and sets out the conditions under which the ICC shall exercise jurisdiction with respect to this crime. Such provisions are to be consistent with the relevant provisions of the Charter of the UN. In effect, the jurisdiction over the crime of aggression is a facilitative provision, which can only be given effect once the definition and conditions are agreed.
Elements of Crimes
To assist the ICC in its interpretation and application of Articles 6, 7 and 8, there are to be adopted by the Assembly of States Parties what are referred to as 'Element of Crimes'. The aim is to provide clearer definitional content of the elements of each offence including the requisite mens rea. For both their adoption and amendment a two-thirds majority of the members of the Assembly of States Parties is necessary. Whether the judges would treat the Elements as binding on them is an open question.
Offences Not Included
Among the crimes which were proposed but on which it was not agreed that the ICC would have jurisdiction are crimes against United Nations and associated personnel, terrorism, and crimes involving the illicit traffic in narcotic drugs and psychotropic substances.The ICC's jurisdiction only applies with respect to crimes committed after the entry into force of the Statute. For a state that becomes a party at a later date, the ICC can only exercise its jurisdiction with respect to crimes committed after the entry into force of the Statute for that state. The principal issues of controversy on jurisdiction were concerned with so-called trigger mechanisms, i.e. the ability to refer to the ICC. The Statute provides for:
Reference by a State party: A 'situation' could include part of a State or extend across a number of States.
Reference by the Prosecutor: The second is where the Prosecutor has initiated an investigation in respect of a crime referred to in Article 5. The Prosecutor may initiate such investigations proprio motu on the basis of information on crimes within the jurisdiction of the ICC. The sources of information open to the Prosecutor are very wide. They include state, organs of the UN, inter-governmental or non-governmental organisations, or other reliable sources, as they deem appropriate. The testimony may be written or oral. A specific incident could be referred to the ICC even though the situation has not. The possibility of a Prosecutor having an independent right of referral was particularly controversial. Some regarded such a power as a necessary pre-requisite to an independent and effective ICC. Others were concerned of the risk of possible abuse. Article 15 builds in a checking mechanism on the role of the Prosecutor by requiring that if the Prosecutor concludes that there is a 'reasonable basis' to proceed with the investigation, they shall submit to a pre-trial Chamber a request for authorisation of an investigation.
Pre-conditions to the exercise of jurisdiction: Even where there has been a reference by a state party or the prosecutor, the ICC may still only exercise that jurisdiction if one or more of the following states are parties to the Statute or have accepted its jurisdiction under a separate declaration: (a) The state on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the state of registration of that vessel or aircraft; (b) The state of which the person accused of a crime is a national. The conditions are therefore related to territorial jurisdiction and nationality jurisdiction. The requirements are in the alternative. It is also important to note that there is no requirement for the consent of the state in which the person is actually detained at any particular time, i.e., the custodial state. There would, of course, be substantial problems if the custodial state did not co-operate.
Reference by the Security Council: The third possibility for the ICC to exercise jurisdiction is in a situation in which one or more of the crimes in Article 5 appear to have been committed and that situation is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations. Again, the reference is to a 'situation' rather than a specific case. The referral must be under Chapter VII of the Charter, and is therefore subject to the exercise of the veto power of the permanent members. A Chapter VII decision would also require all UN members to co-operate with the ICC. The preconditions to the exercise of jurisdiction in terms of the consent of either the state of territorial jurisdiction or the state of nationality jurisdiction do not apply to a referral by the Security Council.
The Security Council's power to suspend investigation or prosecution: No investigation or prosecution may be commenced or proceeded with for a period of 12 months after the SC in a chapter VII resolution has requested the ICC to that effect. The Council under the same conditions may renew the request. In effect, this affords the SC the power to prevent the ICC from investigating or prosecuting offences within its jurisdiction. The rationale for doing so is based on the need for the SC to discharge its responsibilities in maintaining international peace and security. On a number of occasions the UN has had to negotiate peace agreements with persons who were believed to be responsible for offences that will be within the ICC's jurisdiction. However, by putting it in terms of a negative power, it also subjects the exercise of that power to the possibility of a veto by one of the permanent members. In that sense, it turns the veto into a more constructive institutional instrument. There are extremely detailed provisions dealing, inter alia, with admissibility, the investigation and prosecution of offences by the Prosecutor, evidence, the rights of defendants, the protection of victims and witnesses, international co-operation and judicial assistance, general principles of criminal law (e.g., the exclusion of jurisdiction over persons under 18, the irrelevance of official capacity, the responsibility of commanders and other superiors, mental element, grounds for excluding criminal responsibility, mistake of fact or mistake of law, superior orders). There are no distinctions based on official capacity.
Trials and penalties
The trial must take place in the presence of the accused. Trial in absentia is therefore excluded. The range of penalties open to the ICC are imprisonment for a specified number of years which may not exceed a maximum of 30, or a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. In addition to imprisonment, the ICC may order a fine or a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. There is no possibility for the death penalty to be imposed. Reparations can be awarded. They can be awarded against an individual offender or be made through a Trust Fund.Reservations and amendments
No reservations can be made to the Statute. Amendments can be proposed and considered only after the expiry of seven years from the entry into force of the Statute, and the voting requirement for amendments to the offences are very strict. A State, which has not accepted the amendment, has the option to withdraw from the Statute in accordance with certain conditions. Alternatively, if it does not accepted the amendment, it can remain a party to the Stature but 'the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that state party's nationals or on its territory'. This provides states with protection from amendments that they did not support.Funding
The funding of the ICC and the Assembly of States Parties is to be provided from assessed contributions made by states parties and funds provided by the UN subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.Why the US voted against the ICC
The United States raised a number of objections. First, it wanted an ICC controlled by the Security Council. It objected to the jurisdictional approach of the Statute, which in its view gives the ICC a form of jurisdiction over non-states parties. It wanted a right of veto over jurisdiction over US personnel and officials. Second, it wanted the Statute to be more flexible so that States could see how the ICC operated and so assess its effectiveness. Third, when the amendment procedures deal with new or amended crimes, then States parties can avoid the jurisdiction over the amended provisions. The US regarded it as perverse that a non-state party could not do so. Finally, it was not happy with the references to the crimes of terrorism and drug trafficking in the resolution annexed to the final act.Although the US's preferences did not prevail, its strong influence is clearly reflected in the Statute. Nonetheless, the US faces the problem that the ICC appears relatively likely to go ahead. Its strategies are to seek to correct the flaws in the Statute, possibly by seeking its amendment before it ever enters into force, reserving the right to actively oppose the Treaty, maintaining a preference for ad-hoc mechanisms in the interim, and vague suggestions that it will re-evaluate its troop commitments in Europe.
Would the ICC have jurisdiction in a case like that of General Pinochet? The simple answer would be 'no', because the ICC Statute does not operate retrospectively. Leaving that aside, however, the Statute clearly states that there is no immunity for Heads of State, so that would not be an issue. If a future General Pinochet were charged with any of the offences within the ICC's jurisdiction (see above), then he could be tried if the state of nationality or territorial jurisdiction was a state party, or if there was a referral by the Security Council.
A Preparatory Commission has been established and it will meet for a number of sessions in 1999. It is to consist of representatives of states which have signed the Final Act and 'other states which have been invited to participate in the conference' (i.e. including the USA). It is to prepare proposals for practical arrangements for the establishment and coming into operation of the ICC. This includes drafting the texts of Rules of Procedure and Evidence and the Elements of Crimes before 13 June 2000.
Also of importance is that the Commission shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the ICC shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the provision for amendments. The Commission is to remain in existence until the conclusion of the first meeting of the Assembly of States Parties.
It may be a couple of decades before the practical effectiveness of the ICC can be credibly appraised. Nonetheless, from a legal and political perspective it does represent a historic achievement for international law and the international legal system. It is an expression of some degree of moral and ethical standards in an 'international community'. Its clear gender provisions and recognition of the importance of victims represent important advances. In the course of time the ICC could play an important role in deterrence, ending the culture of impunity and ensuring international justice, in part by encouraging States to live up to their responsibility to investigate and prosecute the relevant offences. What is of course vital is that the existence of the ICC does not become an excuse for doing nothing else. The exercise of the whole range of political, economic and even military sanctions must remain open.
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