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
permanent,
multilateral,
treaty-based,
international criminal tribunal with
global jurisdiction to
prosecute individuals.
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;
- Penalties;
- Appeal and Revision;
- International Cooperation and Judicial
Assistance;
- Enforcement;
- an Assembly of States Parties; and
- Financing.
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.