Policy Perspectives Favoring the Establishment of the International Criminal Court.

• Author: Bassiouni, M. Cherif

The First World War was called "the war to end all wars." However, a short time later, the world again found itself in conflict. After the horrors of the Second World War were revealed, a new promise emerged: "never again." Since then, some 250 international and regional armed conflicts have occurred. These conflicts, along with human rights violations perpetrated by tyrannical regimes, have produced an estimated 170 million casualties as well as other incalculable losses.(1)

Governments in a position to prevent or mitigate these tragic events, or to pursue restorative and retributive justice, remain largely and regrettably passive, though some have voiced opprobrium. This passivity has had devastating consequences and the "never again" proves to be of little comfort to the people who continue to suffer as a result of these conflicts. This is due, in part, to the nature of contemporary democratic forms of government, which make it difficult to obtain prompt and effective institutional responses,(2) and the fact that the humanitarian values that most people share do not easily transcend public apathy to conflicts around the world. But the vast tragedies of the 20th century are also due to the absence of a permanent system of international criminal justice. In the context of such a world system, where national and international action are problematic and human nature can be its own worst enemy, we need an effective system to deter or lessen the scope of international violence and crime, and provide needed accountability and redress. To avoid repeating the enormous tragedies of this century, we need to have a permanent system of international criminal justice.

The overall situation is particularly shocking not only because of the high level of victimization, but also because so many violations fall under the proscriptive norms of genocide, crimes against humanity and war crimes--the three major jus cogens international crimes.(3) Yet, notwithstanding the types of crimes committed and the enormously harmful results, the worst perpetrators, including high-level government decisionmakers, have seldom been held accountable.(4) These individuals have therefore benefited from de facto and sometimes even de jure impunity.(5)

Impunity is due in large to the pursuit of political settlements at the expense of justice, which is often bartered away in exchange for political goals--a process that confuses ends with means.(6) But while that approach may temporarily satisfy the demands of realpolitik, it sacrifices the most basic human need for elementary justice. Recognizing this moral challenge, international civil society has reached the point where it no longer accepts the dissembling argument that to achieve peace, meaning political settlement, impunity is the justifiable quid pro quo that leaders exchange for cessation of conflict.(7) That is not to say, however, that international criminal prosecutions are appropriate in all cases and for all perpetrators.(8) Accountability mechanisms vary, and what may be appropriate in one context may not be in another.(9)

Sympathy for victims of international crimes, no matter how sincere or widespread, is meaningless. Indignation by itself is never enough. Retributive and restorative justice is what makes sympathy meaningful and indignation credible.

CHARACTERISTICS OF THE INTERNATIONAL CRIMINAL COURT(10)

The International Criminal Court (ICC) is an international, treaty-created body whose powers are derived from the will of the state-parties, as opposed to a supranational entity imposed upon states. The treaty, which contains the statute of the court, will be binding only on its state-parties and will enter into effect only after 60 ratifications. The ICC's jurisdiction complements that of national criminal justice systems and applies only to criminal conduct that occurs subsequent to the statute's ratification. The ICC will depend on the cooperation of the state-parties as well as non-state-parties for its investigatory, prosecutorial and enforcement needs. This includes apprehension and surrender of offenders, securing evidence, enforcement of judgements and execution of sentences. Following is a list of the ICC's ten basic characteristics:

1. The ICC's jurisdiction is "complementary" (Article 17) to national legal systems. It must be clearly understood that the ICC is created by a treaty that, upon its ratification, becomes part of the national law of the ratifying state. Consequently, the ICC is not a supranational institution, but an international institution. The ICC does not, therefore, infringe upon national sovereignty. Furthermore, the ICC exercises a function that member states individually and collectively confer upon it by treaty and by national legislation. Lastly, the ICC does not promulgate laws that override those of national legal systems. The statute further specifies the basis upon which jurisdiction can shift from a state-party's national jurisdiction to the ICC. The ICC is thus an extension of national jurisdiction, as established by a treaty whose ratification under national parliamentary authority makes it part of national law. The court may exercise jurisdiction when the member state who has primary jurisdiction is either unwilling or unable to exercise its national criminal jurisdiction. The determination of inability or unwillingness is made by a three-judge panel subject to a review on appeal before the appellate chamber, consisting of five judges.

2. The ICC will only exercise jurisdiction prospectively in cases where indictments have been returned after confirmation by a three-judge chamber of the court when the alleged crime was committed on a member state's territory by one of its nationals. In addition, the ICC may exercise its jurisdiction when a non-member state consents to the court's jurisdiction and the crime has been committed on that state's territory or the accused is one of its nationals.

3. Every state has the right, in accordance with its constitutional norms, to transfer jurisdiction over an accused individual to another state(11) or to an international judiciary with which it has signed a treaty Such jurisdictional transfer is an entirely valid exercise of national sovereignty. It must, however, be done in accordance with international human rights norms.(12) Since the ICC is complementary to national criminal jurisdiction, a member state's surrender of an individual to the ICC's jurisdiction pursuant to the treaty, does not infringe upon national sovereignty, nor does it violate the rights of the individual whose prosecution is transferred to a complementary criminal jurisdiction provided that international human rights law norms are observed as discussed further below.

4. Its ratione materia jurisdiction extends, at this time, to three well-defined international crimes: genocide, war crimes and crimes against humanity. Genocide is defined in the 1948 United Nations Treaty Series Convention on the Prevention and Punishment of the Crime of Genocide,(13) ratified by 123 states(14) and consistently confirmed by customary international law. The ICC's definition of genocide (Article 6) is almost verbatim Articles II and III of the convention. The ICC's war crimes provision (Article 8) includes the "grave breaches"(15) and Common Article 3 of the 1949 Geneva Conventions that have been ratified by 186 states.(16) That provision also includes those aspects of the two 1977 Geneva Protocols(17) deemed part of the customary law of armed conflict.(18) The 1977 Geneva Protocols have been ratified respectively by 147 and 139 states.(19)

   The ICC provision on crimes against humanity (Article 7) embodies Article 6(c) of the Nuremberg Charter,(20) Article 5 of the International Criminal Tribunal for the former Yugoslavia (ICTY)(21) and Article 3 of the International Criminal Tribunal for Rwanda (ICTR).(22) The provision also includes more specifics which could be included under the terms "other inhumane acts" which are included in all these prior formulations. However, owing to the ICC drafters' concern with the "principle of legality,"(23) they preferred to list such specifics as:

   ... 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 as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.(24) Other crimes that are within the interpretative scope of "other inhumane acts" are also included. Because of that very concern, the drafters also elected not to include "aggression," until it can be clearly defined by the Assembly of State-Parties (Article 5).(25)

   Since all three crimes within the ICC's jurisdiction are already well-defined, the ICC does not establish new international criminal law, but rather, embodies it. Even if that were not the case, the ICC is a product of treaty, and thus the state-parties can surely establish what should constitute an international crime provided its application is prospective.(26) The substantive law of the ICC will, therefore, not be applied retroactively It is well-established, positive law that the ICC has codified in order to avoid the potential quandaries of law created not by elected legislatures but by judges. Any claim that the ICC statute invokes a body of international criminal law not previously legislated is spurious: the ICC does not have the power to legislate.

5. The statute provides for substantive and procedural due process rights...