Overview

Michael Scharf

This guide supplements the powerful one-hour public radio documentary In Search of Global Justice. The documentary is about the huge change taking place in international human rights protection and how it may affect the future of war and peace. This guide provides some background on the issues covered in the program. It is intended for use by educators and others interested in leading a discussion on the emerging system of global human rights law. This Guide was prepared with assistance from Prof. Michael Scharf (shown here) of the Case Western Reserve University School of Law (Professor of Law and Director of the Frederick K. Cox International Law Center).

Background

1. What are the reasons for establishing a permanent international criminal court (ICC)?

The ICC provides a means of establishing accountability when the State in which the perpetrator is located is unable or unwilling to prosecute. This can be due to the destruction of the State’s judicial system (as in Rwanda in 1994), or to the involvement of the government in the crime (as in Nazi Germany in the 1940s and Serbia in the 1990s).

International prosecutions serve three main functions: (1) to establish the historic record of atrocities so that the mistakes of the past are not repeated; (2) to bring the principal offenders to justice and thereby lesson the urge for retaliation or revenge by those who have been victimized; and (3) to deter future offenses by demonstrating that those who commit such crimes will have to pay the price.

Even if the ICC is unable to obtain custody over an accused leader in the short term, an international indictment and arrest warrant will make the accused a prisoner within the borders of his/her own country; will isolate the accused diplomatically and strengthen the hand of political rivals; and can serve as the basis for the international freezing of the assets held by the accused in foreign banks.

2. The ICC will be empowered to prosecute three categories of crimes: genocide; serious war crimes; and crimes against humanity. What do these crimes entail?

Genocide is the purposeful destruction of an ethnic, national, religious, or racial group. Perpetrators can be prosecuted for attempt or conspiracy to commit genocide, as well as the completed act.

Serious war crimes are major violations of the laws of war (such as targeting civilians, using civilians as human shields, or mistreating POWs) in internal or international armed conflict. The ICC is empowered to prosecute war crimes that are committed as part of a plan or policy or as part of a large-scale commission of such crimes.

Crimes Against humanity are inhuman acts (such as rape, torture, or murder) committed as part of a widespread or systematic attack directed against the civilian population.

These are the same crimes that were covered by the 1945 Nuremberg Charter (through which Nazis were prosecuted after WW2) as well as the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda.

The ICC Statute also mentions the crime of Aggression (as when a nation initiates a war), but this crime cannot be added to the ICC’s jurisdiction until 7/8 of the States that are party to the Rome Treaty agree on a definition and procedure for prosecuting aggression. This cannot occur until seven years after the Rome Treaty enters into force.

3. The U.N. Security Council has established International Criminal Tribunals for the Former Yugoslavia and Rwanda. How do these differ from the ICC?

The Tribunals for the Former Yugoslavia and Rwanda were created on a temporary “ad hoc” basis by a resolution of the U.N. Security Council to prosecute atrocities in the former Yugoslavia and Rwanda. The ICC, in contrast, is created by a treaty the 1998 Rome Statute. The ICC is empowered to prosecute crimes committed anywhere in the world as long as the State of the offender’s nationality or the State where the crime occurred are parties to the ICC’s Statute, or if the Security Council refers the matter to the ICC. Unlike the ad hoc tribunals, the ICC is a standing, permanent court. This avoids the need to create separate courts for each new situation, which has proven expensive, time consuming, and politically difficult.

4. When will the ICC be operational?

According to its Statute, the ICC will be operational when sixty countries have ratified the 1998 Rome Treaty. To date, nearly 100 nations, including England, Canada and almost all other U.S. allies worldwide, have signed the Rome Treaty indicating their intent to submit the treaty to their parliament or legislatures for ratification. France has amended its constitution for this purpose. The United States, however, has not signed the Treaty. Ratification in the United States occurs only after the Senate has voted to approve a treaty by a two-thirds majority. The Chairman of the Senate Foreign Relations Committee (currently Senator Jesse Helms of North Carolina) has the power to prevent a treaty from ever going to the Senate floor for a vote.

5. Who will pay for the ICC?

International justice is not cheap. The Yugoslavia and Rwanda Tribunals, for example, have annual budgets of more than $90 million each. The ICC will receive funding from the States that have ratified the Rome Treaty on a proportional basis relative to their gross domestic product. When the Security Council refers a situation to the ICC for prosecution, the United Nations will pay for the costs associated with the investigation and prosecution of the related cases.

6. How will the ICC enforce its orders?

In addition to providing money, the parties to the Rome Treaty are obliged to comply with the orders of the ICC with respect to the surrender of indicted persons and the provision of evidence from their territories. Non-parties are only obliged to provide such cooperation when a case is referred to the ICC by the U.N. Security Council. The Security Council can impose economic and diplomatic sanctions on countries which refuse to provide cooperation to the ICC, it can authorize the use of force to arrest indicted persons, and it can freeze the assets of indicted persons.

7. Why is the United States currently opposed to the ICC?

The United States government has played a major role in supporting the complex process by which the ICC is being formed. However, some U.S. officials, including leaders of the military, are concerned that the ICC may bring “politically motivated” prosecutions against U.S. soldiers and officials. The U.S. had sought an amendment to the Rome Treaty requiring that, before the court can proceed with a case, the country involved give its consent to having its citizens prosecuted. The vast majority of nations opposed that amendment, fearing it would undermine the court’s credibility as an institution of justice. When the amendment was defeated, the United States delegation felt compelled to vote against the Rome Treaty. Most observers believe the ICC will come into being, even over American objection.

8. Are there any safeguards in the ICC Statute to prevent politicized prosecutions of U.S. officials?

Under the Rome Statute, the ICC’s prosecutor and judges are to be selected by the Assembly of State Parties which in the near term will be dominated by the “like-minded” Western States (i.e., all of America’s allies) which have emerged as the greatest supporters of the ICC. In addition, the crimes within the ICC’s jurisdiction have a high threshold, requiring proof of widespread or systematic abuses. A single mistake or accident would not qualify. Moreover, under a principle known as “complimentarity” the ICC cannot prosecute if the accused’s State is investigating and, if warranted by the evidence, prosecuting the case. The ICC can proceed in such a case only if the Prosecutor can convince the panel of judges that the domestic proceedings were conducted in bad faith. Finally, the U.N. Security Council can vote to shut down an ICC investigation or prosecution, provided all permanent Security Council members agree. These safeguards were viewed as sufficient by all of the other members of the NATO alliance, as well as Russia.

Discussion Questions

1. We live in what has been labeled “the golden age of impunity.” In the last century, some 170 million civilians were killed by their own governments. After the Nuremberg Trial in 1946, there was hope that the international community would bring officials responsible for such international crimes to justice but no action was taken in response to mass atrocities in Russia, China, Uganda, Cambodia, El Salvador, East Timor, and Iraq. Why, from 1946-1996, did the international community fail to institute a judicial response to these international crimes, and what are the consequences of that failure?

After the Nuremberg Trial, the United Nations began a fifty-year effort to establish a permanent International Criminal Court (ICC). The effort stalled due to the cold war. The major powers were not willing to establish a tribunal that had the power to declare their actions unlawful. The first Prosecutor of the Yugoslavia Tribunal has stated that the failure to prosecute Pol Pot (Cambodia), Idi Amin (Uganda), and Saddam Hussein (Iraq) for their crimes against humanity encouraged the Serbs in Bosnia and the Hutus in Rwanda to commit atrocities with the expectation that they, too, would never be held accountable.

With the end of the cold war, and the disclosure of atrocities in the former Yugoslavia, the UN Security Council created the ad hoc tribunal for the former Yugoslavia in 1994. A year later, in response to the genocide in Rwanda, a second ad hoc tribunal was created. The effective functioning of these international courts fueled momentum to establish a permanent International Criminal Court.

2. Does the ICC represent a choice between international criminal justice and an erosion of state sovereignty?

The existence of the ICC means that certain U.S. policies could potentially be judged by an international judicial body, even if the U.S. does not become party to the Court’s Statute. This would occur, for example, if the State where an alleged offense was committed initiated a complaint against U.S. personnel or officials who were responsible for the act. The ICC could potentially indict such persons even though the U.S. is not a party to the ICC Statute.

However, this does not mean that the U.S. has lost some of its sovereignty, in the view of many legal experts. A State does not have the sovereign right to prevent another State from prosecuting the former’s citizens for crimes committed in the territory of the latter. Since the state where the crime is committed has the right to institute criminal proceedings against those responsible, there is no effect on the sovereignty of the state of the accused’s.

Under the World Trade Organization treaty (GATT), the U.S. has agreed to compulsory dispute settlement procedures. The U.S. is also party to some 100 treaties that require the parties to refer disputes about the interpretation or application of the particular treaty to the International Court of Justice. These constitute a much greater diminution of U.S. state sovereignty than would be the case if it were to ratify the ICC Statute.

Parties to the ICC Statute are required to provide evidence upon the Court’s request, and to surrender indicted persons to the Court. However, a State can prevent the ICC from proceeding against one of its nationals by undertaking its own criminal proceedings against the accused in good faith. In such case, what the State gives up is the option of granting its citizens impunity.