This session is addressing the way in which the application of the rule of law is developing from regimes based upon the jurisdiction of sovereign nation states to international jurisdictions. Nations will be required increasingly to apply and respond to laws that are settled in international fora. Perhaps the most dramatic way in which this is occurring, as we meet, is in the creation and development of the International Criminal Court (ICC).
By most measures we would have to say that until now there has been no truly effective mechanism for dealing with large scale human rights abuses on the international stage. In the last 50 years there have been more than 250 armed conflicts around the world. More than 86 million civilians, mostly women and children, have died as a consequence. (At the time of the First World War 90% of casualties in armed conflicts were members of armed forces - now 90% are civilians.) Another 170 million people have been deprived of their human rights in very significant ways. Few individual perpetrators have been held accountable - that is, brought to justice - by international or national tribunals. A culture of impunity - exemption from punishment - has developed. That is dangerous.
But all the signs are positive for change in that situation in the not-so-distant future, thanks to the establishment of the ICC.
Will the International Criminal Court work? The signs are positive. It can work for itself and by stimulating national jurisdictions to act. If it does not work, we will have lost, probably, a last opportunity to effectively redress major human rights abuses through legal process.
International Humanitarian Law
Human rights abuses occur particularly during armed conflicts, but also in times of what we presume to call peace. They occur in ways that are comparatively minor or small in scale and in ways that are grave or widespread. They may be confined within narrow boundaries or acquire broad international dimensions.
The creation of sanctions against severe human rights abuses in the international context originated in the circumstances of armed conflict - usually international armed conflict. There is evidence that national judicial proceedings to punish persons guilty of such excesses were conducted in ancient China, in early Hindu culture and in ancient Greece. The concept of an international tribunal to try war crimes (and even gross human rights abuses), while not of such antiquity, is nevertheless not new. The first known international court was set up in 1474 in Breisach, Germany. Twenty-eight judges from different nations tried and convicted Peter von Hagenbach for violating "the laws of God and man" in the course of a battle when various atrocities were perpetrated upon the inhabitants of that town.
In those earlier times there were unwritten rules that regulated armed conflicts, based on custom. Later, until the middle of the 19th century, there were some ad hoc bilateral agreements to protect the victims of war, based on reciprocity and binding only on the contracting parties.
The momentum for the establishment of an international criminal tribunal like the ICC is of comparatively recent origin. It has arisen out of the gross abuses of human rights perpetrated in more modern times and with increasing frequency in times of armed conflict (only some of which have been redressed) and the unsatisfactory nature of the means hitherto available to punish abuses, wherever they occur: whether internationally or in a national context.
Modern attempts to try international criminals (still arising out of the context of international armed conflict) might be traced back to 1919 under the Treaty of Versailles (when an attempt was made to try the German Kaiser and others), to the Treaty of Sevres of 1920 (Turkish officers who had massacred over 600,000 Armenians) and to the League of Nations Convention of 1937 (Croatians who had assassinated King Alexander of Yugoslavia).
They were encouraged by the development of universal treaties, starting with the first Geneva Convention (1864) dealing with the wounded in war, which saw the birth and early development of international humanitarian law as we understand it today. There were advances in:
- 1868: Declaration of St Petersburg (prohibiting the use of certain projectiles);
- 1899: The Hague Conventions, respecting war on land and adapting the principles of the Geneva Convention to warfare at sea;
- 1906: the second Geneva Convention;
- 1907: review of The Hague Conventions, adding the fourth Hague Convention relating to prisoners of war;
- 1929: two Geneva Conventions, including one relating to the treatment of prisoners of war;
- 1949: the four Geneva Conventions presently in force, making provision also for the protection of civilians in time of war.
(Further treaties have been developed relating to warfare and its effects - this list is not exhaustive.)
Impetus was given to the movement when the victorious parties to the Second World War established by charter (or declaration) the Nuremburg and Tokyo Tribunals (respectively the "International Military Tribunal for the Trial of the Major War Criminals" and the "International Military Tribunal for the Far East") to address specifically breaches of customary international law committed during that time of international armed conflict.
In his opening statement in Nuremberg, Justice Robert Jackson said:
"The wrongs we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being tolerated. 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."
(After a significant interval, that spirit is once more animating an international court.)
In 1977 a Diplomatic Conference adopted Protocol I to the Geneva Conventions (relating to the Protection of Victims of International Armed Conflicts) and Protocol II (relating to the Protection of Victims of Non-International Conflicts).
The four Geneva Conventions and their two Protocols, together with The Hague Conventions, gave us modern international humanitarian law (or the law of armed conflict, or the law of war). The former conventions address military personnel who are not engaged in active fighting and civilians who are not involved in hostilities, while the latter establish the rights and obligations of belligerents in the conduct of military operations. These instruments prescribe rules and enable preventative, monitoring and reporting procedures to be undertaken, with a view to enforcement.
States parties to the conventions are obliged to legislate to provide for the prosecution or surrender of persons guilty of grave breaches of the conventions. Such prosecutions may be brought in national courts of the countries concerned or by an international authority.
Against this background and following the end of the Cold War, the UN Security Council established, pursuant to its powers under Chapter VII of the UN Charter (to maintain and restore international peace and security):
- in 1993 the International Criminal Tribunal for the Former Yugoslavia (ICTY - more particularly the "International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991"); and
- in 1994 the International Criminal Tribunal for Rwanda (ICTR - more particularly the "International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994").
International Human Rights Law
International humanitarian law (which applies to armed conflict) is complemented by international human rights law (which applies to all persons, at all times and in all places). This relationship is reflected in the range of matters that will come within the jurisdiction of the ICC.
Human rights law consists substantially of prescribed standards for conduct and derives especially from:
- the Universal Declaration of Human Rights (1948);
- the Convention on the Prevention and Punishment of Genocide (1948);
- the International Covenant on Civil and Political Rights (1976);
- the International Covenant on Economic, Social and Cultural Rights (1976);
- the Human Rights Conventions of Europe (1950), the Americas (1969) and Africa (1981);
- the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984-5); and
- the Convention on the Rights of the Child (1989).
Until now, the human rights prescribed by such instruments have been able to be infringed virtually with impunity (provided it was done on a sufficiently large scale). The ICC, hopefully, will help to put an end to that.
These experiences and developments form the backdrop to the push over the past 50 years or so in UN agencies (particularly the International Law Commission - ILC) for the establishment of an ICC. The need has been seen for a tribunal that addresses gross abuses of human rights and does not depend for its effectiveness upon the goodwill or might of any one national power. The ILC, having first proposed a permanent international criminal court in 1949 (after it failed to materialise in 1948 alongside the Universal Declaration of Human Rights and the Genocide Convention - largely because the crime of aggression could not be satisfactorily defined), finally gave the matter serious attention in 1993 and put forward a draft statute in 1994. Six Preparatory Commission sessions were held in New York and inter-sessional meetings elsewhere from 1996-98. In 1998 the Statute for the court was adopted.
The goal of those creating the ICC is ambitious but achievable. The result must be a melding of civil law and common law criminal justice principles, international human rights standards, international criminal law and international humanitarian law. In an environment of realpolitik there must be created a whole new criminal justice system - an international body of substantive and procedural criminal law to be applied by a court that will allow the effective prosecution of persons accused of the most serious crimes against humanity and provide for their appropriate punishment if convicted. That court must also guarantee a fair trial for accused persons and an avenue of appeal in accordance with internationally recognised human rights standards and rigorous due process. It must also, like all criminal courts, operate fairly for the community at large; in this case, the entire international community.
To appreciate the magnitude of the task, imagine yourself setting out to design from scratch - with a blank sheet of paper - a court for the trial of the worst offences in the criminal calendar, committed anywhere, at any time, by nationals of any States, in the most internationally acceptable fashion possible (and in a climate of something less than universal endorsement). You start with nothing - no courthouse, no rules of procedure, no personnel, no rules of investigation, no definition of what crimes are to be tried and no idea of how that is to be done, no defences, no principles of accessorial liability, no system for challenging the court's jurisdiction, for review or appeal and no procedures for protecting the integrity of the court itself. All the assumptions and fallbacks - the things you would take for granted - that would comfort you if you were setting out simply to extend your own courts - do not exist.
Nothing can be assumed - there is no safety net for this spectacular high wire act.
The ICC is unique - there has never been and there is no other
international criminal tribunal with
global jurisdiction to
The ICC has been established by a treaty adopted at a conference held between 160 countries in Rome in June-July 1998. Over 20 intergovernmental organisations, 14 specialised UN agencies and a coalition of over 200 NGOs were also present. The Statute for the Court was adopted on 17 July 1998 by 120 votes to 7, with 21 abstentions. China, Israel and the USA were among those who opposed it. (12 countries must have left early!)
The countries involved had to reach consensus on every aspect of the 128 Articles in the Statute in order to fulfil the challenge of creating a credible court which was acceptable to all the major legal systems and jurisprudential schools of the world - and a court that would work, in practical terms (notwithstanding the element of compromise inherent in such a process).
The Statute addresses in its Parts all relevant aspects of such a tribunal, including:
- the Establishment of the Court;
- its Jurisdiction, Admissibility (or complementarity of jurisdictions), Applicable Law;
- General Principles of Criminal Law;
- Composition and Administration of the Court;
- Investigation and Prosecution;
- the Trial;
- Appeal and Revision;
- International Cooperation and Judicial Assistance;
- an Assembly of States Parties; and
The Preparatory Commission for the Court has met (including inter-sessional meetings):
in New York on 16-26 February 1999,
in Paris on 27-29 April 1999,
in Siracusa on 21-27 June 1999,
in New York on 26 July-13 August 1999,
again on 29 November-17 December 1999,
again on 13-31 March 2000 and
again on 12-30 June 2000.
It next meets in New York on 27 November-8 December 2000.
All aspects of the structure and operations of the Court have been addressed at these meetings, including the all-important Rules of Procedure and Evidence and the Elements of Crimes which were completed at the June 2000 meeting. There has been discussion of financial and headquarters agreements and of the definition of aggression (which will be deferred to a later time). At the next session work will begin on the third and final generation of documents necessary for the Court's operation. They include the Relationship Agreement between the ICC and the UN and the Agreement on the Privileges and Immunities of the Court.
At the time of writing 15 countries have ratified the Rome Treaty and a further nearly 100 have signed it. The Treaty enters into force following ratification by 60 countries. It will not operate retrospectively. It looks as though the Court may open for business in 2002-2003.
The Court has a number of positive aspects that take it beyond any previous initiatives of this kind and contribute to the likelihood of its success. They include the following:
- an independent Prosecutor who may initiate investigations and prosecutions proprio motu;
- automatic jurisdiction over all core crimes (included in genocide, crimes against humanity and war crimes);
- the inclusion of internal armed conflict in the definition of war crimes;
- the ability of the Security Council to refer a situation to the Prosecutor, even if the relevant country does not agree and/or is not a party to the treaty;
- the principle of complementarity of jurisdiction with national courts;
- the power to proceed where national courts are unwilling or unable to do so;
- extensive provisions on the rights of suspects and accused persons;
- provisions that protect victims and witnesses;
- reparation for victims;
- the integration of gender concerns into the definition of crimes and in the composition of the Court;
- provisions guaranteeing justice for women and children specifically;
- the ability to add further crimes to the jurisdiction of the Court in the future (eg aggression, terrorism, drug crimes, crimes against UN personnel).
The Court is to apply legal principles in accordance with a descending scale:
1 the Statute itself, including the Elements of Crimes and the Rules of Procedure and Evidence;
2 then applicable treaties and the principles and rules of international law;
3 then general principles of national laws of states with jurisdiction over the crimes (provided they are compatible with international law).
In practice the last will be relied upon often, thereby "attaching" the Court to national jurisdictions in a further respect.
Some aspects that may not be so positive (but we shall need to wait and see how countries respond) are:
- the opt-out provision for war crimes;
- the inability, so far, to produce an acceptable definition of aggression.
The ICC will have jurisdiction initially over genocide, crimes against humanity, war crimes and aggression (when it has been defined) - a mix of offences against both international humanitarian law and international human rights law - committed anywhere in the world (and not just in the States parties) at any time.
By contrast, the ICTY has jurisdiction only over crimes committed from 1991 in the territory of the former Yugoslavia and the ICTR only over crimes committed in 1994 in Rwanda (and neighbouring States if committed by Rwandan nationals).
Genocide (Article 6) is defined in the same way as it is in the 1948 Genocide Convention:
"For the purpose of this Statute, `genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."
Crimes against humanity (Article 7) include the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
- murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are impermissible under international law, enforced disappearance of persons, the crime of apartheid, other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
They do not require a nexus to an armed conflict. (Many of the above terms are further defined in the Article.)
War crimes (Article 8) will be examined in particular where they are committed as part of a plan or policy or on a large scale. There are lists of 34 offences when committed in international armed conflict and 16 when committed in internal armed conflict. They include grave breaches of the Geneva Conventions (8) in international conflict and serious violations of the laws and customs of war, and breaches of common article 3 of the Geneva Conventions (4) in internal conflict.
There is an opt-out provision in respect of war crimes. Article 124 enables a State party to declare that for a period of 7 years after it becomes subject to the Statute the Court will not have jurisdiction over war crimes committed by its nationals or on its territory.
The crime of aggression (Article 5.2) is yet to be defined (and will not be actionable until that has occurred).
The jurisdiction of the ICC may be invoked by three means:
- first, when situations are referred to the Prosecutor by the Security Council under Chapter VII of the UN Charter - all States will then be bound to comply with orders for the surrender of indicted persons and for the taking of evidence. This is an ad hoc jurisdiction which does not require complementarity.
- secondly, when situations are referred to it by individual States parties;
- thirdly, situations where the Prosecutor decides, proprio motu, to initiate proceedings.
In the second and third situations there is automatic jurisdiction over all core crimes when committed on the territory of a State party or by a national of a State party - there are no statutory limitations on core crimes and national legislation must reflect that: if it does not, there may be deemed to be an unwillingness or inability to prosecute which would give the ICC jurisdiction.
But there are some hurdles to be overcome.
· The Court's jurisdiction is based on complementarity (for admissibility), interpreted to mean that the ICC will only act when domestic authorities are unwilling or unable to do so.
· Secondly, the Prosecutor must notify States with a prosecutorial interest of his/her intention to commence an investigation. If the State advises that it is investigating the matter, the Prosecutor must defer unless he/she can show the Court that the State's investigation is a sham.
· Thirdly, the Prosecutor must obtain the approval of a 3 judge Pre-Trial Chamber before commencing an investigation.
· Fourthly, the Security Council can vote to postpone an investigation or prosecution for one-year periods (renewable) if it is satisfied that proceedings may interfere with the peace enforcement activities under Chapter VII of the UN Charter.
The first and third situations provide a balance between the Court's powers and those of national States.
The Court's procedural regime combines accusatorial features of the common law with inquisitorial features of civil law systems. All procedures are subject to international human rights law standards on fair trial and due process. This ensures that the highest standards will be observed, enhancing the status of the ICC itself, its proceedings, its convictions and its sentences. It must enjoy the confidence of States, of national courts and of the international community generally in order to function to its full potential. National courts might otherwise seek to thwart its activities by entertaining constitutional or fair trial objections to the exercise of its jurisdiction.
Principles of liability and procedure are elaborated in some detail in the Statute and they have been developed in the Papers that have now been prepared by the Preparatory Commission.
One aspect troubles a coalition of criminal law defenders. The Statute demands a full and fair opportunity for the defence to question witnesses. The civil law system incorporates a neutral juge d'instruction, looking for both incriminatory and exculpatory evidence. The ICC, however, has adopted the strong prosecution model of the common law system without the counterbalance of a strong defence. The defence lawyers want to see greater opportunity for questioning by the defence.
Once the blueprint for a viable permanent international criminal tribunal - the ICC - has been created, there will still be rules of court to be drafted to complete the design. Whether or not it "works" when it is up and running will depend upon many factors, including the following.
- The intensity of the frustration generally felt about the impunity with which human rights abuses have occurred in the past.
- The extensive and far-sighted preparatory work undertaken by all interested parties before the Rome conference.
- The fact that political realities have already been acknowledged in the compromises that have been made in order to create the Statute (notwithstanding that they have resulted in some complexities and insufficiencies).
- The limited scope and purpose of the ICC (at least in its initial stages).
- The speed with which the treaty is ratified. A good indication of the level of international acceptance, and hence the effect to be given to the Court by States generally, may be obtained from the ratification process. The threshold level of 60 ratifications for it to come into force is high; but it is also a figure which, when reached, demonstrates general international acceptance.
- Absence of the need for national acquiescence in the Court's process (which has been a stumbling block in the past) - although, no doubt, practical obstacles will continue to be encountered in the enforcement process as the ICTY has demonstrated.
- The personalities involved in the Court (judges, prosecutors, administrators, researchers, investigators, etc) - their level of expertise and application, the extent to which they are able to make it work.
- The quality of the victims and witnesses unit.
- The level of resources provided and financial support to the Court and its various arms.
- The level of support shown by the UN, by States, by NGOs (who may have an important role to play in assisting investigations) and by people generally (dependent in large measure upon the achievement of acceptable results in court adjudications). This may be gauged by their willingness to assist investigations (particularly in the early, confidential, stages) and to surrender evidence, witnesses and accused persons.
- The extent of international institution building that accompanies the development and operation of the Court.
The Secretary General of the UN, Kofi Annan, described the adoption of the Statute of the ICC as "a giant step forward in the march towards universal human rights and the rule of law" - and so it is. It may even be the case, as one commentator has said, that it "could well be the most important institutional innovation since the founding of the UN".
In addition to enabling the prosecution and punishment of individual human rights abusers, the ICC will serve a very valuable deterrent purpose. It will do so both by encouraging national legislatures and courts to act against such abuses (so as to retain national jurisdiction over such events) and by demonstrating to potential abusers that there is no longer impunity for their acts.
The ICC is certainly a giant step in the right direction for humankind and our best hope in modern times for the maintenance or restoration of peace by ensuring accountability for actions and justice for all.