International Criminal Court and Universal jurisdiction

The International Criminal Court (ICC) is an organ meant to preserve and maintain a just social order internationally. Whether or not its creation was with bona fide motives or not may be debatable , the fact of the matter in my opinion, as that of several authorities on the subject, is that its existence indeed helps serve this purpose, and this will be more so, if it is granted universal jurisdiction.

The ICC was established in 2002, with its official seat in The Hague, Netherlands as a permanent tribunal to prosecute individuals for genocide (an international crime involving acts causing serious physical and mental harm with the intent to destroy, partially or entirely, a national, racial or religious group ), crimes against humanity (brutal crimes that are not isolated incidents but that involve large and systematic actions, often cloaked with official authority, and that shock the conscience of humankind ), war crimes (violations of international laws governing the conduct of international armed conflicts ), and the crime of aggression (armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression ), though it cannot currently exercise jurisdiction over the crime of aggression. The court came into existence on the 1st of July, 2002 - the date its founding treaty, the Rome Statute of the International Criminal Court, came into force - and it can only prosecute crimes committed on or after that date.

As of October 2007, 105 states are members of the Court. A further 41 countries have signed but not ratified the Rome Statute. However, a number of states, including the United States, India and China, are critical of the Court and have not joined. The reasons for this have been discussed later in this essay.
The history of the emergence of the Court may be discussed. In 1948, following the Nuremberg and Tokyo Tribunals, the United Nations General Assembly recognised the need for a permanent international court to deal with atrocities of the kind committed during World War II. At the request of the General Assembly, the International Law Commission drafted two draft statutes by the early 1950s, but these were put on the shelf because the Cold War made the establishment of an international criminal court politically unrealistic.

A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, revived the idea during the forty-fourth session of the General Assembly in 1989, proposing the creation of a permanent international court to deal with the international trade in drugs. While efforts began to be made on a draft statute, the international community established ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda, further highlighting the need for a permanent international criminal court.

Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the objective of finalising a treaty. On July 17, 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, the United States and Yemen.
The Rome Statute became a binding treaty on 11th April, 2002, when the number of countries that had ratified it reached 60. The Statute, as mentioned earlier, legally came into force on July 1, 2002, and the Court can only prosecute crimes committed on or after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on the 11th of March, 2003. The Court issued its first arrest warrants on 8th July 2005, and the first pre-trial hearings were held in 2006.

Some light may be thrown on the jurisdiction of the Court. Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, referring to them as the most serious crimes of concern to the international community as a whole: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (as has already been mentioned). The Statute defines each of these crimes except aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

Many states urged for the addition of terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, the states were unable to agree on a definition for terrorism and it was decided not to include drug trafficking as this might lead to problems, keeping in view the Court's limited resources. India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes but this move was also defeated. India has expressed concern that the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.

Some commentators have also expressed the view that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.

Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5. The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.
During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated, largely due to opposition from the United States. A compromise was reached, allowing the Court to exercise jurisdiction only under certain limited circumstances, namely:
• where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
• where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
• where a situation is referred to the Court by the UN Security Council.

The Court is intended to be a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.

Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Indeed, the establishment of the International Criminal Court is a positive development and helps in the establishment of an international check for all governments not to engage in or turn a blind eye to human rights violations. However, this hardly means that this is enough.

This is in fact, just the beginning. In the words of Dr. S.K. Kapoor, a well-known scholar of international law in India and formerly Reader in the Faculty of Law, Lucknow University-
The adoption of the Rome Statute of the International Criminal Court is a great achievement. There are, however, some glaring shortcomings. For example, the crimes of hijacking and terrorism which pose a great menace to the international community, especially to the innocent men, women and children, have not been included in the list of crimes over which the International Criminal Court shall have jurisdiction. Similarly, the enforcement mechanism derived is far from satisfactory. The Statute shows that states are yet not prepared to establish a strong Court having compulsory jurisdiction over international crimes. The Statute represents the maximum agreement that could be reached in the present circumstances. A welcome feature of the Statute is the provision of review of the Statute seven years after the entry into force of this Statute. Let us hope that when a Review Conference is held the present shortcomings will be removed. A good and auspicious beginning has been made with the adoption of the Statute. It is rightly said that well begun is half done, so be it.

The concept of universal jurisdiction may be examined. Universal jurisdiction or universality principle is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish.

Several countries, such as Belgium, Canada, Germany, Israel, Spain and the United Kingdom, have passed laws in this spirit, thereby allowing themselves to try anyone anywhere in the world for what they consider is a grievous crime. There have also been cases, like Adolf Eichmann being carried off by Mossad agents from Argentina and being tried in Israel, for killing Jews, though Israel was in no way directly involved.

I, like several eminent jurists, do not support the concept of universal jurisdiction in this sense, though in some ways, it may have proved to be useful for convicting genuine criminals. Such a policy is prone to political misuse, and only an international tribunal should have jurisdiction over all people committing grievous crimes that affect humanity the world over. The international tribunal for such crimes is the ICC, and I fully support the idea of giving it universal jurisdiction, so as to have a better tomorrow. However, for this to happen, all states must cooperate in handing over perpetrators to states where the crimes have been committed, so that they can be tried, since the ICC is a court of last resort (if the courts of the countries do not punish the perpetrators, an appeal can be made to the ICC). We have already discussed the shortcomings in the ICC in its present form, but the solution lies in removing these shortcomings, rather than opposing the ICC, a non-political body, comprising judges from the world over. As US Senator Patrick Leahy (the views expressed by him differ from those expressed by the prevalent Bush government) puts it, …I recognize that improvements can be made to the ICC through further negotiations.

Opposition to the ICC and the real reason for the same Governments of countries like the United States of America, China and, unfortunately, even India oppose the ICC, in my opinion, only to immunize themselves and those abetted by them or those they do not wish to punish, from the action that the ICC can take against them. However, it is noteworthy that many people in these countries are all for the ICC. Two such persons have already been mentioned – Dr. S.K. Kapoor from India and Patrick Leahy from the United States, and more such people have been mentioned subsequently in the essay.

We may begin with the only superpower in today’s world, the United States. It has made several attempts to oppose the ICC. President Bush signed the anti-ICC Nethercutt Amendment and put sanctions on countries that support the ICC. It has passed the American Servicemembers' Protection Act (ASPA) prohibiting U.S. cooperation with the International Criminal Court. It is noteworthy that before it was enacted, ten Senators sent a letter to Secretary of State Colin Powell urging him to reject the option of a diplomatic confrontation with our allies in an effort to try to kill the Court. President Bush ‘unsigned’ the Rome treaty of the ICC. In a letter to the then UN Secretary General Kofi Annan, US Under Secretary of State for Arms Control and International Security John R. Bolton wrote-
This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.

In the words of US Senator Patrick Leahy (who has been quoted earlier as well), I am deeply disappointed that the Administration has decided to 'unsign' the Rome Treaty on the International Criminal Court (ICC). This unprecedented decision will not protect U.S. citizens and military personnel from the Court's jurisdiction. Rather, it will work against U.S. interests by undermining our moral authority on this critical issue… Mr. Collin Powell, US Secretary of State, has justified the ‘unsigning’ in the following words – the ICC, where prosecutors and a court beholden to no higher authority, not beholden to the Security Council, not beholden to anyone else, and which would have the authority to second-guess the United States after we have tried somebody and take it before the ICC, we found that this was not a situation that we believe was appropriate for our men and women in the armed forces or our diplomats and political leaders. However, it is noteworthy that the ICC is a court of last resort and that obviously, there will have to be a court at the top of the hierarchy. The ICC is the best international forum for combating impunity and bringing to book perpetrators of serious crimes, which often go unpunished, says Usha Ramanathan, a New Delhi-based independent law researcher. It is ideally placed to achieve justice for all, to act as a court of last resort, to remedy the deficiency of ad hoc tribunals, to deter future perpetrators of heinous crimes, and to have true and lasting peace, based on justice.

Not only has the US ‘unsigned’ the ICC treaty, it has also got other countries such as East Timor and Romania to protect its citizens from being offered to the ICC by these countries. The agreement between the US and East Timor, signed August 23, 2002 states that either of the two countries shall not, absent the expressed consent of the first Party,

(a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.

It is noteworthy that the ‘Parties’ referred to are the United States and East Timor. However, the US campaign against the ICC has not been a grand success. In the words of Reed Brody, Special Counsel with the reputed international organization, Human Rights Watch -
The U.S. campaign has not succeeded in undermining global support for the ICC and universal jurisdiction. But it has succeeded in making the U.S. government look foolish and mean-spirited. Many countries continue to ratify the ICC treaty, and the court last month swore in its first prosecutor, a distinguished Argentine jurist teaching at Harvard Law School.

We may discuss at some length, why the US is actually opposed to the ICC. It has been worded beautifully by Reed Brody when he says, the Bush administration is engaged in a worldwide crusade against the ICC and universal jurisdiction, which it sees as incompatible with its vision of U.S. global supremacy. The United States apparently wants to immunize itself from any international legal restraint on its conduct by barring even the theoretical possibility that the actions of top U.S. officials could be questioned by the ICC…

In this context, we may discuss some of the human rights violations carried out by the US in Iraq. In an article written by Praful Bidwai, an internationally known author and human rights activist, he mentions –
The John Hopkins School of Public Health in the U.S. estimates that Iraq's occupation has resulted in the avoidable deaths of 655,000 civilians since the country's invasion in March 2003. Even before the war, sanctions imposed at the behest of the U.S. led to the death of an estimated one million Iraqi civilians, half of them children.

This apart, several atrocities were committed by the US soldiers in Iraq. Beginning in 2004, accounts of abuse, torture, rape and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention. The acts were committed by some personnel of the 372nd Military Police Company of the United States, and possibly additional American governmental agencies. It is largely believed that the punishments awarded to the perpetrators in the US Army were not enough.

Also, while the capital punishment awarded to Saddam Hussein may be justified, gross human rights violations were committed against him during the trial, thus basically not letting his trial be a free and fair one. As mentioned by Praful Bidwai in his article –
Had the ICC tried Hussein for his alleged crimes against humanity, it would have averted the numerous flaws that marked his prosecution by the SICT , noted by the United Nations' Working Group on Arbitrary Detention (UGAD), established by the UN Commission on Human Rights. UGAD received its mandate from the General Assembly and the UN Human Rights Council.

UGAD held that ‘the deprivation of liberty of Saddam Hussein is arbitrary, being in contravention of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).’ The accused were denied the elementary right to defend themselves. Hussein didn't have unimpeded access to his lawyers, nor adequate facilities to prepare his defence. Two of Hussein's lawyers were assassinated. This ‘seriously undermined his right to defend himself through counsel of his own choosing.’

SICT judge Abdel-Rahman, who delivered the final verdict, abruptly, arbitrarily ended the trial in Jun. 2006. He made ‘statements incompatible with impartiality and the presumption of innocence enshrined in Article 14(2) of the ICCPR.’ Even before the trial ended, Iraqi Prime Minister Nuri Al-Maliki demanded that Hussein be hanged. More recently, he declared the hanging would take place before the end of the year, thus usurping the judiciary's prerogative. The final procedural clearances were obtained in unseemly haste.

Considering all this, it becomes clear that the US opposes the ICC only to immunize itself from the action it (the ICC) can take against it, and not for any of the reasons it states for doing so, which are merely excuses. One reason cited by the US, as mentioned earlier, is that there is no court above the ICC, and it has already been explained that this argument makes no sense. Another reason cited by the US is that its soldiers and officials would be the target of politically motivated prosecutions, hampering its ‘peacekeeping’ efforts around the world. It is worth mentioning that the US human rights violations were by no means in the spirit of ‘peacekeeping’ and that it went against the Charter of the UN, the international peacekeeping organization, of which the US is a founder member, by declaring war on Iraq. On September 16, 2004, Kofi Annan, the then Secretary General of the United Nations, said of the invasion, I have indicated it was not in conformity with the UN charter. From our point of view, from the charter point of view, it was illegal.

Next, China’s position with respect to the ICC may be taken up. The reasons for the opposition of the Chinese government to the ICC are not too far to seek. In a country, where in its communist setup, human rights are blatantly violated, as is evident from the assassination of protesting students at Tiananmen Square in 1989 , the government would obviously not come out in support for an international criminal tribunal.

Finally, the case of India. While enlightened public opinion in India is, to quite an extent in favour of the ICC, there have been human rights violations, such as by army personnel in the northeast against even innocent civilians, communal riots, such as in Gujarat in 2002 , or more recently, the murders and rapes of peasants in Nandigram in West Bengal , often believed to involve political parties, and therefore the government does not wish to subscribe to the jurisdiction of the ICC for this reason.

Question of sacrificing security for sovereignty

Now we arrive at the question of whether states subscribing to the jurisdiction of the ICC and giving it universal jurisdiction would mean sacrificing sovereignty for security. In this connection, we may first define the word ‘sovereignty’. It means ‘supreme dominion, authority or rule’. While every government must have supreme authority as such, if it is to be misused or not used properly, there is no harm in having, and definitely there should be, an international criminal tribunal without geographical limits on jurisdiction (so that the perpetrator can run, but not hide), to ensure the security of all human beings, to ensure that major crimes, affecting large masses should be checked. Moreover, the ICC is a court of last resort, and does not interfere if justice has been imparted by the domestic judiciary of any country. As Praful Bidwai points out, The ICC statute contains numerous checks and balances to prevent possible misuse. It is based on the principle of complementarity - that is, it would complement national legal systems, and not act as a substitute for them. The prosecutor cannot start an investigation without permission from a pre-trial chamber of three judges. If subscribing to the ICC and giving it universal jurisdiction means, to some extent, sacrificing sovereignty for security, the sacrifice is more than worth it.

The ICC represents a major advance over existing arrangements, says Saumya Uma, coordinator of ICC-India, the Indian Campaign on the International Criminal Court. It allows individuals to be prosecuted fairly and in conformity with international law in a genuinely global forum on the principle that crimes against humanity and war crimes are the concern of the entire world and not one specific nation-state. Yet, some states have been opposing it on spurious and narrow grounds of ‘sovereignty'. In this respect, the view expressed by Bernhard Graefrath assumes significance – …the competence of an international criminal court will ultimately only curtail concepts of sovereignty which are basically already outdated under the existing order of international law. This is true, at any rate, insofar as offences against the peace and security of mankind are concerned; acts constituting offences of this kind are international matters lying outside the area of state sovereignty. Accordingly, if states are to strengthen the international legal order, they must create as effective a mechanism as possible for the international prosecution of these offences.

Richard Goldstone, a former judge of the Constitutional Court of South Africa, eminent leader in residence at the Joan B. Kroc Institute for Peace and Justice at the University of San Diego and chairman of the Institute for Historical Justice and Reconciliation at the Salzburg Seminar, supporting the concept of an international criminal tribunal with universal jurisdiction, recalls an incident, when he was chief prosecutor for the ad hoc war crimes tribunal for the former Yugoslavia, showing how international efforts help bring about justice-

In the summer of 1995 I received a call from a television journalist who was in tears. She had interviewed a man who had participated in the massacre in Srebrenica. He admitted to having shot at least 71 Muslim men and boys in the back of the head. He also drew a map with remarkable accuracy showing exactly where the mass grave was located. The reporter took the map to the U.S. Embassy in Belgrade, but then she did a rather unfortunate thing. She called her London office and told them about the interview. The call was tapped by the secret police in Belgrade. At the airport, the video of the interview was confiscated. She feared the police would murder the witness. I immediately secured an order requesting Serbia to hand over the witness. Not only was he not killed, he was eventually delivered to the court in The Hague. With the evidence he provided, as well as satellite photographs, we were able to locate the graves and prosecute him for a war crime. The same evidence provided the basis for some of the charges against Milosevic. This evidence not only allowed us to bring suspected war criminals to justice, it also established the historical record.

He further goes to say-
A permanent International Criminal Court plays an important role not only in serving justice in the immediate present, but in laying the groundwork for preventing future conflicts. Good evidence makes for good justice. It also makes for credible history. And, let's hope, a more peaceful future.

The author can be reached at: [email protected]

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