Does the evolution of International Criminal law end with the ICC? The "roaming ICC": a model international criminal court for a State-centric world of international law.

• Author: Hale, Christopher

"If women, children, and old people would be murdered a hundred miles from here ... wouldn't you run to help? Then why do you stop this decision of your heart when the distance is 3,000 miles instead of a hundred?" Raphael Lemkin (1)

1. INTRODUCTION

   Getting the world to agree on any issue of global importance is an extremely arduous task. (2) Almost all international agreements require years of negotiations, thousands of miles traveled, hundreds of hours drafting, not to mention the money needed to bring about these agreements. Taking into consideration the laborious and costly nature of international relations in tandem with the divergent positions of many States on international criminal law, the 1998 Rome Statute of the International Criminal Court (Rome Statute) that established the international Criminal Court (ICC) must be viewed as a tireless, monumental success. (3) Despite the United States' (U.S.) ongoing unwillingness to partake in the ICC, (4) it cannot be ignored that the time, effort, and money that went into fashioning the Rome Statute resulted in 104 nations becoming ICC State Parties. (5) As a result, the ICC is currently functional, and most importantly, already adjudicating alleged international criminals. (6) However, the ICC has the lofty goal of ending international impunity, (7) and it is only natural to question if the ICC is sufficiently capable of achieving such a gargantuan feat?

   For any international criminal system to pledge that all future international criminals will receive punishment, the most basic requirement that such an international criminal system must fulfill is the guarantee that not one criminal will find State sanctuary from prosecution anywhere in the world. Accordingly, only an international criminal enforcement mechanism backed by all nations could make such a guarantee, because an international criminal only needs one safe haven to escape justice. The ICC falls well short of obtaining full international support considering that some of the most powerful countries--U.S., Israel, Russia, China, and India--are not State Parties to the ICC. At present, the lack of full worldwide support significantly reduces the likelihood that ICC can deliver on its mandate, particularly its goal of catching and punishing all international criminals.

   From this shortcoming of the ICC, it becomes evident that a true international criminal system demands the inclusion and participation of every sovereign State. An international criminal enforcement mechanism without an all-inclusive global identity cannot solve a dilemma that rises to the level of international crime. Far from being simply a semantic critique, any and all legitimate goals of an international criminal system, be it international peace and security, deterrence of international crime, or the end of international impunity, cannot be realized with only partial cooperation, because an international criminal system short of full universal support lacks the integrity and reliability necessary to fulfill its purpose. (8) Therefore, anything less than the membership of every single nation cannot rationally be deemed an adequate international criminal enforcement mechanism. Otherwise, the world is left with an international criminal system, like the ICC, riddled with holes from which international crime thrives.

   The purpose of this Note is to propose a theoretically different international criminal tribunal, one with the potential to bring about full worldwide participation. This Note's proposed international criminal system, called the "Roaming International Criminal Court" (Roaming ICC), brings together the three elements necessary to create a truly international criminal system: reality of the Westphalian State-centric system of international law, (9) the philosophic and legal beliefs of the opponents of the current ICC, and the philosophic and legal beliefs of the proponents of the current ICC. The result is a plausible international criminal system that will be the best equipped to face the challenges of prescribing, adjudicating, and enforcing international criminal law in all instances. (10)

   This Note will methodically trace the evolution of international criminal law, starting in Part II with an analysis and critique of universal jurisdiction. Considered the backbone of international criminal law, universal jurisdiction weaves in and out of all subjects in international criminal law. The purpose of Part II will be to define universal jurisdiction and its many forms, compare and distinguish universal jurisdiction from other areas of this Note, and finally conclude that universal jurisdiction practiced by individual States or international tribunals cannot represent an effective international criminal system.

   Part III will focus on the most notable international criminal tribunals of modern era: the International Military Tribunal at Nuremberg (Nuremberg), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). A quick overview of the precedent set down by Nuremberg will help shed light on the analysis, both factual and legal, of the ICTY and ICTR. International criminal law, by its very nature, adjudicates the worst human behavior imaginable. Therefore, the sections devoted to the ICTY and ICTR thoroughly examines the underlying conflicts and the facts that led to the creation of these two ad hoc tribunals as a reminder of the very reasons why the world must have a fully functioning, fully backed international criminal system. Part III will conclude that ad hoc tribunals, while necessary for the former Yugoslavia and Rwanda conflicts, are not viable international criminal enforcement mechanisms for the world at large.

   Part IV will detail the creation of the ICC, the structure of the ICC, and the benefits of the ICC over its ad hoc tribunal predecessors. However, is the evolution of international criminal law supposed to end with the ICC? Part V will answer this question in the negative, primarily because the current ICC is contrary to the reality of a State-centric world of international law. The Westphalian system of State domination over the international legal order, while certainly challenged and altered in recent years, is not in jeopardy of radical change or of future demise. An effective international criminal system must embrace the State-centric reality of international law, in that it must be tailored to work in our State-centric world. In promoting such a philosophical change in the international community's approach to creating an international criminal system, Part V will introduce the Roaming ICC and explain its benefits. As will be demonstrated, the central appeal of the Roaming ICC is that it incorporates every single nation, appeases both sides of the current ICC debate, and brings about an effective international criminal enforcement mechanism to punish those that perpetrate the worst of human behavior. (11)

2. UNIVERSAL JURISDICTION: ANALYSIS OF THE CONTROVERSIAL JURISDICTION PRINCIPLE

   The concept "universal jurisdiction" does not have a consistent definition, which is a revealing sign of its limitations. As cited in a recent International Court of Justice (ICJ) opinion, "[t]here is no generally accepted definition of universal jurisdiction in conventional or customary international law" (12) However, for this Note's purposes, universal jurisdiction is a principle of law that enables and/or requires a State to exercise jurisdiction over specific crimes without a connection between the offense, offender, or victim and the State exercising jurisdiction. (13) In the hierarchy of legal principles in international law used to justify the jurisdiction of a State to act, the universal jurisdiction principle is often used only in the absence of any other legitimate option. (14) Whereas other international legal principles ground jurisdiction in a nexus between the actor, victim, place, or state interest with the exercising state, universal jurisdiction is void of such a nexus. (15) Instead, universal jurisdiction focuses on the nature of the crime, in that the crime is so repulsive and threatening to international security (16) that the mere occurrence of the criminal act justifies legal response by any State or appropriate international organization. (17) Despite being devoid of a traditional nexus, the legitimacy of universal jurisdiction itself is not questioned, as the principle of universal jurisdiction is a customary international law. (18)

   "... [T]he term 'universal jurisdiction' is shorthand for 'universal jurisdiction to prescribe' or 'universal prescriptive jurisdiction' ..." (19) This definition highlights an essential aspect of universal jurisdiction worth noting. When jurists and other international legal commentators commonly used the term "universal jurisdiction", it is in reference to the universal jurisdiction to prescribe, not to enforce. (20) For example: universal jurisdiction, absent other jurisdictional principles, means that a State prescribes genocide committed by a foreign tyrant in another State, against foreign persons, and not in conflict with the prescribing State's national interests--as a violation of their domestic law, conventional international law, and/or customary international law-,but the State cannot enforce their domestic genocide law and/or any type of international law prohibiting genocide unless the tyrant comes within the State's territory or the State decides to try the tyrant in absentia. (21)

   Turning now to application, the practice of universal jurisdiction, as defined by international legal scholars, is bifurcated into permissive and mandatory forms. (22) The distinction between permissive and mandatory universal jurisdiction hinges on whether a State exercises universal jurisdiction from a customary or conventional international law obligation. (23) As the adjectives connotate...