Andrea E. K. Thomas, Nongovernmental Organizations and the International Criminal Court: Implications of Hobbes' Theories of Human Nature and the Development of Social Institutions for Their Evolving Relationship

• Citation: Vol. 20 No. 1
• Publication year: 2006

NONGOVERNMENTAL ORGANIZATIONS AND THE INTERNATIONAL CRIMINAL COURT: IMPLICATIONS OF HOBBES' THEORIES OF HUMAN NATURE AND THE DEVELOPMENT OF SOCIAL

INSTITUTIONS FOR THEIR EVOLVING RELATIONSHIP

On November 28, 2004, the Sudanese government ordered Oxfam Great Britain¹and Save the Children UK²to leave the Sudan.³Both nongovernmental organizations ("NGOs") were providing humanitarian assistance to the 1.7 million refugees who had fled their homes in the Darfur region.⁴The Sudanese government objected to public statements the organizations had made, which it characterized as supportive of the rebels, asserting that the organizations should have raised their concerns privately with government officials.⁵The expulsion orders serve as a reminder and a warning for other humanitarian organizations operating in the Sudan and around the world.⁶Humanitarian organizations operate at the will, and often the whim, of host governments-the very governments that are frequently responsible for the suffering that these organizations seek to alleviate.

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Human Rights Watch⁷recently published a report titled How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals.⁸The question that this publication contemplates is of particular interest to NGOs, as these organizations have worked tirelessly to assure the establishment of the International Criminal Court ("ICC").⁹NGOs have dedicated significant resources to this endeavor because the suffering that they aim to eliminate is often caused by those whom the ICC was created to hold accountable. Thus, it is not surprising that many NGOs and their employees are eager to assist the ICC.

Likewise, it is not surprising that the ICC is an eager recipient of NGO assistance. NGOs are generally the first to respond to a humanitarian crisis; on the scene long before peacekeeping forces or criminal investigators, they "are in a privileged position to observe what happens."¹⁰Thus, the information they obtain is potentially invaluable to the ICC. This is particularly true because the ICC differs in an interesting way from other international authorities. While the International Court of Justice ("ICJ") is charged with settling disputes between states,¹¹the ICC's mission is to hold individuals accountable irrespective of state lines.¹²Consequently, whereas the ICJ and other international authorities presuppose a community of nations, the ICC rests on an assumption of world citizenship and, as a result, its success depends on the cooperation of global civil society.

But what happens when handing information over to the ICC compromises the work of a NGO, threatens the safety of its employees, or endangers the lives of the very people that the organization seeks to assist? This Comment, like the Human Rights Watch publication, explores the relationship between NGOs and the ICC. However, it addresses the topic from a decidedly different perspective by examining, first, whether the ICC can compel NGOs to turn over evidence and, second, whether NGOs should cooperate with ICC investigations.

In addressing the latter question, this Comment contends that NGOs, as epistemic communities,¹³form as a result of human self-interest rather than altruistic intentions. This argument is patterned on the theories of the seventeenth-century philosopher Thomas Hobbes, who maintained that states form not as the result of a human desire for community, but rather because of the innate self-interest which drives all human behavior.¹⁴Relying on Hobbes' theories, this Comment argues that NGOs, which, like states, are aggregates of individuals, act in a self-interested manner.¹⁵While the ICC regime contemplates such self-interested behavior on the part of states, its failure to similarly accommodate self-interested behavior by NGOs is problematic, as self-interest will likely cause NGOs to distance themselves from the court.

This Comment proceeds to develop the argument as follows. Part I provides background information on both the establishment of the ICC and the role of NGOs in international law. Part II further sets the stage by discussing some of the roles NGOs may be called upon, or choose, to perform in assisting the ICC in bringing war criminals to justice.

Part III then turns to the legal question of whether the ICC can compel NGOs to turn over information. Section A of Part III examines the ICC's organic legislation, the Rome Statute. Section B reviews the Rules of Procedure and Evidence developed for the ICC. Section C looks at the decisions of other international criminal tribunals relating to privileged communications, which will likely serve as strongly persuasive authority for the ICC. And in conclusion, Section D argues that NGOs most likely will be granted a qualified privilege in the transfer of information to the ICC.

Part IV then turns to the practical question of whether NGOs will cooperate with ICC investigations, setting forth an argument regarding the behavior of NGOs constructed on Hobbes' theories regarding human nature. Section A of Part IV discusses the connection between Hobbes' views on human nature and the formation of societal organizations, including NGOs. And in conclusion, Section B contends that NGOs are likely to behave as self-interested actors in international affairs, undermining the work of the ICC.

I. BACKGROUND

A. History of the ICC and NGOs

The history of the ICC and the emergence of NGOs as international actors are inextricably linked and can both be traced back to 1862. That year, reflecting on the personal tragedy that accompanies war, Henry Dunant asked in A Memory of Solferino, "Would it not be possible, in time of peace and quiet, to form relief societies for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers?"¹⁶These words struck a chord with Gustave Moynier, a prominent member of Swiss society, and many others throughout Europe, ultimately leading to the establishment of the International Committee of the Red Cross ("ICRC").¹⁷Within two years, ten nations had ratified the Geneva Convention of 1864¹⁸at the behest of the ICRC.¹⁹Moynier, a founding member and president of the ICRC, initially rejected the idea of creating an international criminal court to enforce the Convention.²⁰However, confronted with the atrocities of the Franco-Prussian War, Moynier concluded that "a purely moral sanction was inadequate 'to check unbridled passions,'" and, at a meeting of the ICRC in 1872, he presented a proposal for a treaty establishing a permanent international criminal court.²¹Due to considerable criticism from international legal experts, the proposal was abandoned.²²

As armed conflict intensified over the course of the twentieth century so did the cries for justice in its aftermath. Eager to prosecute the German Kaiser after World War I, the Allies included provisions for ad hoc tribunals in the Treaty of Versailles.²³At the conclusion of World War II, similarly-conceived tribunals were actually convened at Nuremberg and Tokyo.²⁴In the wake of the Holocaust, the mantra "Never Again" was adopted by the international community.²⁵In an effort to ensure that it was a promise and not just an empty phrase, the Genocide Conventions²⁶and the Universal Declaration of Human Rights²⁷were adopted,²⁸and the U.N. General Assembly requested that the members of the International Law Commission ("ILC") study the possibility of establishing a permanent international criminal court.²⁹The establishment of a court, however, was sidelined by Cold War politics.³⁰

Shortly after the fall of the Berlin Wall in 1989, Trinidad and Tobago resurrected the proposal for an international criminal court, and the U.N. General Assembly once again charged the ILC with drafting a statute establishing such a court.³¹In 1993 and 1994, clear violations of the Genocide and Geneva Conventions in both the former Yugoslavia and Rwanda caused the U.N. Security Council to establish ad hoc tribunals pursuant to Chapter VII of the U.N. Charter.³²Simultaneously, the ILC completed work on a draft statute and recommended that nations convene to negotiate a treaty and enact the statute.³³Outrage over the atrocities in Yugoslavia and Rwanda galvanized the international community and "the idea of a permanent court gained momentum."³⁴

B. Pre-Conference Work of NGOs

NGOs seized the momentum that events of the early 1990s had generated.³⁵

When the U.N. General Assembly decided to refer the text to an ad hoc committee for further review, the ILC's 1994 draft statute seemed likely to meet the same fate as previous proposals.³⁶However, a small number of NGOs formed the NGO Coalition for the ICC ("CICC").³⁷Working together through the CICC, the organizations lobbied state and intergovernmental representatives; produced expert documents, reports, and journal articles; disseminated information; organized conferences and seminars; and raised funds to enable poor states to send delegations to these conferences.³⁸

Additionally, at the 1995 International Conference of the Red Cross and

Red Crescent, the ICRC contributed to the growing momentum by once again urging states to establish a permanent court.³⁹Concerned by the violation of international humanitarian law and frustrated by the unwillingness of states to fulfill their enforcement duties under existing treaties, the ICRC expressed sentiments similar to those Gustave Moynier had expressed while president of the organization over a century earlier.⁴⁰

Within a year, the U.N. ad hoc committee charged with reviewing the ILC's proposal had been converted to a Preparatory Committee and was drafting text for an anticipated diplomatic conference.⁴¹The ICRC and the CICC continued to play influential roles as the Preparatory Committee finalized the draft statute in preparation for the 1998 U.N. Diplomatic Conference of Plenipotentiaries ("Rome Conference").⁴²

C. Presence of NGOs at the Rome Conference.

Both state...