The international criminal court statute: Jurisdiction and admissibility

Criminal Law Forum

Volumn 10, Issue 1, 1999, Pages 61-85

  Philips, Ruth B ^a  

^a UNIVERSITY OF CONNECTICUT   (United States)

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EID: 53149139897     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1009491305605     Document Type: Article

References (107)

1. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, U.M. Doc. A/CONF. 183/9 (1998), 〈http://www.un.org/icc〉 [hereinafter ICC Statute].
2. See ICC Statute, Parts 5, 9.
3. ICC Statute, art. 11: "1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute." "2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3."
4. Recognizing, of course, that drafting problems in the current Statute (and the yet-to-be-drafted "Elements of Crimes") may or may not offend the latter principles, the retroactivity bar notwithstanding.
5. Presumably, nothing in current law would prohibit the domestic or ad hoc prosecution of a war crime which cannot be prosecuted before the ICC due to a state's exercise of the Statute's war crimes opt-out provision (art. 124).
6. Important authorities on this subject include: Juan E. Mendez, In Defence of Transitional Justice, in TRANSITIONAL JUSTICE AND THE RULE OF EAW IN NEW DEMOCRACIES (A. James McAdams, ed., 1997);
7. Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE E.J. 2537 (1991);
8. NAOMI ROHT-ARRIAZA, IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL EAW AND PRACTICE (1995).
9. For an examination of universal jurisdiction, see generally Kenneth Randall, Universal Jurisdiction under International Law, 66 TEX. L. REV. 785 (198 8);
10. Jonathan I. Charney, Universal International Law, 87 AM. J. INT'L L. 529 (1993).
11. The Preamble to the ICC Statute "[e]mphasiz[es] that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions."
12. For the five bases of prescriptive jurisdiction (territorial, nationality, protective, passive personality, and universality), see, e.g., BARRY CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 726-736 (2nd ed. 1995);
13. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 298-305 (4th ed. 1990);
14. Bartram Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Tribunals, 23 YALE J. INT'L L. 323, 391-392 (1998). With the exception of the more recent Apartheid Convention, among the post Second World War humanitarian law instruments, only the Genocide Convention refers generically to an (unrealized) international criminal tribunal, see Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, art. VI;
15. International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by O.A. Res. 3068 (XXVIII) of 30 Nov. 1973, 28 U.N. GAOR, 1015 U.N.T.S. 244, art. 5.
16. These instrument s are the only international law sources providing "concurrent jurisdiction" in any federalism sense, as, in the Genocide Convention, between a (territorial) State and an international body. In the absence of an international criminal forum, jurisdiction over war crimes or other international crimes has primarily been exercised through domestic prosecutions.
17. See, generally, e.g., THE LAW OF WAR CRIMES, NATIONAL AND INTERNATIONAL APPROACHES (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997). To date, international criminal tribunals, from the Nuremberg International Military Tribunal (IMT) to the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have been created to investigate and prosecute specific atrocities and are jurisdictionally delimited, temporally and geographically. Moreover, the two charters (IMT and ICTY) have different originating sources in law. The Nuremberg Charter was drafted by the United States, the United Kingdom, the Soviet Union and France, although it later obtained the adherence of nineteen other States, and the principles of the Charter and judgment were unanimously adopted by the United Nations General Assembly, G.A. Res. 95(1), 1(2) GAOR Res. The ICTY and the ICTR were created pursuant to Security Council Resolutions and their jurisdiction is binding on all member States.
18. See ICC Statute, art. 18, discussed infra.
19. Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031, T.S. No. 933, 3 Bevans 1153, art. 39: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken ... to maintain or restore international peace and security."
20. See Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex, arts. 9, 29;
21. Statute of the International Criminal Tribunal for Rwanda, U.N. Doc S/RES/955 (1994), annex, arts. 8, 28.
22. See Rules of Procedure and Evidence [of the International Criminal Tribunal for the former Yugoslavia], U.N. Doc. IT/32, Rule 9;
23. Rules of Procedure and Evidence [of the International Criminal Tribunal for Rwanda], U.N. Doc. ITR/3/Rev. 1, Rule 9.
24. Id. These criteria do not appear in the ICC's legislative history.
25. The tension between the truth commission approach to transitional justice, which in some cases offers forms of amnesty to members of a prior regime in exchange for information, acknowledgment and apology, and the criminal prosecution of those same persons through an international (or national) tribunal is, on a certain level, fundamentally irreconcilable (although these values certainly animate adversarial plea bargaining). The peace versus impunity debate is beyond the scope of this paper. For a discussion of this issue, see, e.g., MARTHA MlNON, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLATION (1998);
26. Harvard Law School Human Rights Program, TRUTH COMMISSIONS: A COMPARATIVE ASSESSMENT: an interdisciplinary discussion held at Harvard Law School in May 1996 (1997);
27. Diane Orentlicher, International Criminal Law and the Cambodian Killing Fields, 3 ILS A J. INT'L & COMP. L. 705 (1997);
28. Michael Scharf, The Case for a Permanent International Truth Commission, 1 DUKE J. COMP. & INT'L L. 375 (1997);
29. Priscilla Hayner, Fifteen Truth Commissions - 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597 (1997);
30. Richard Goldstone, Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals, 28 N.Y.U.J. INT'L & POL. 485 (1996);
31. Stephan Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions, 59 LAW & CONTEMP. PROBS. 81 (1996);
32. W. Michael Reisman, Legal Responses to Genocide and Other Massive Violations of Human Rights, 59 LAW & CONTEMP. PROBS. 75 (1996);
33. W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 DUKE J. INT'L L. & POL. 175 (1995);
34. Mark Ensalaco, Truth Commissions for Chile and El Salvador: A Report and Assessment, 17 HUM. RTS. Q. 656 (1994).
35. See, e.g., Gerry J. Simpson, War Crimes: A Critical Introduction, in THE LAW OF WAR CRIMES, supra note 9 at 1-30.
36. See ICC Statute, arts. 17, 18, 53, discussed infra.
37. One proposal would have made the State the arbiter of complementarity with respect to its own criminal process. Another sought to limit referrals to an "interested" state. For a helpful overview of the early legislative history of the statute with respect to complementarity, see Jeffrey L. Bleich, Complementarity, 13 NOUVELLES ÉTUDES PÉNALES 231 (1997).
38. ICC Statute, art. 12: "Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
39. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall co-operate with the Court without any delay or exception in accordance with Part 9."
40. See, e.g., "Report of the Preparatory Committee on the Establishment of an International Criminal Court," U.M. Doc. A/CONF. 183/27Add. 1, 14 April 1998, at art. 9, option 2.
41. For an excellent and comprehensive discussion of treaty approaches to concurrent and universal jurisdiction, see Roger Clark, Offences of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg, 57 NORDIC J. INT'L L. 49 (1988) (noting the growing trend in treaty practice toward the obligatory exercise of universal jurisdiction in conjunction with the principle of aut dedere aut judicare, and noting the persistent lack of guidance in resolving competing claims over a case).
42. U.S. Lays Down Its Cards, TERRAVlVA, Jul. 10, 1998, no. 20, at 1.
43. See, e.g., Ramesh Jaura, India Thumbs Nose at 'European' Court, TERRAVlVA, Jul. 17, 1998, 〈http://www.ips.org/icc/tv170704.htm〉;
44. Ramesh Jaura, Alison Dickens, U.S. Speak More Softly, TERRAVlVA, Jul. 16, 1998, 〈http://www.ips.org/icc/tv160704.htm〉
45. Diane F. Orentlicher, U.S. Cheats Justice in Opposing World Court, Los ANGELES TIMES, Aug. 30, 1998, p. M2.
46. See ICC Statute, arts. 12(2), 13(b). Consent is presumed by virtue of the Security Council's authority.
47. See Charter of the United Nations, supra note 11, arts. 25, 39, 43, 49, and 51.
48. See AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW THIRD, THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Section 402 at p. 242 (1987).
49. On the behavior of the United States in negotiations over this provision, see Diane F. Orentlicher, supra note 23.
50. The United States continues, post-Rome, to lobby for a document which reflects American self-interest. See, e.g., Oct. 21, 1998 speech by David Scheffer before the Sixth Committee of the 53rd United Nations General Assembly, New York, New York.
51. See Proposal Submitted by the Republic of Korea, U.N. Doc. A/CONF.183/C.1/L.6 (1998).
52. Bureau Proposal, U.N. Doc. A/CONF.183/C.1/L.59 (1998).
53. See THE ROME TREATY CONFERENCE MONITOR, SPECIAL ISSUE OF THE NGO COALITION FOR AN INTERNATIONAL CRIMINAL COURT, Issue 23, Jul. 15, 1998.
54. Ibid.
55. See "The jurisdiction of the International Criminal Court, An informal discussion paper submitted by Germany," Mar. 23, 1998, U.M. Doc. A/AC.249/1998/DP.2.
56. Initial doubt about whether inherent jurisdiction meant primary (ICC) jurisdiction was settled in early negotiations. See, e.g., "The Report of the Preparatory Committee on the Establishment of an International Criminal Court," Vol. I (Proceedings of the Preparatory Committee during March-April and August, 1996) GAOR 51st Session, Supplement No. 22 (A/51/22) at para. 118, p. 28;
57. see also AMNESTY INTERNATIONAL, THE INTERNATIONAL CRIMINAL COURT - MAKING THE RIGHT CHOICES - PART I, Jan. 1997 [hereinafter "Making the right choices"], AI Index: IOR 40/01/97, at 13-14;
58. Roger Clark, Nuremberg and Tokyo in Contemporary Perspective, in THE LAW OF WAR CRIMES, supra note 9 at 173.
59. See generally CHERIE BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL EAW (1995).
60. See, e.g., HUMAN RIGHTS WATCH, JUSTICE IN THE BALANCE - RECOMMENDATIONS FOR AN INDEPENDENT AND EFFECTIVE INTERNATIONAL CRIMINAL COURT 53 (1998) [hereinafter JUSTICE IN THE BALANCE].
61. John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 337 (1997).
62. See also AMNESTY INTERNATIONAL - MAKING THE RIGHT CHOICES, supra note 33 at 14. Concededly, the failure to arrest Karadzic is a failure of international political will; presumably the Security Council has the means to enforce the service of arrest warrants issued under ICTY auspices.
63. ICC Statute, art. 13.
64. See, e.g., the intervention of Kenneth Roth, Executive Director of Human Rights Watch, at the Diplomatic Conference on Jun. 18, 1998, available at 〈http://www.un. org/icc/speeches/618rot.htm〉 (discussing the failure of the Security Council to investigate the 1988 execution of 100,000 Kurdish men in Iraq, in spite of 18 tons of police documents and testimony establishing an overwhelming case of genocide); Intervention of Indai Lourdes Sajor, Asian Centre for Women's Human Rights at the Diplomatic Conference on Jun. 18, 1998, available at 〈http://www.un.org/icc/speeches/618asc.htm〉 (discussing the failure of the international community to address the impact of armed conflict on women in spite of its persistence, escalation, and brutality); comments of Ustinia Dolgopol, Senior Lecturer in Law, The Flinders University of South Australia, at Jun. 25, 1998 panel discussion, What's At Stake for Women in the ICC, held during the Diplomatic Conference by Women's Caucus for Gender Justice in the International Criminal Court (transcription on file with author) (expressing scepticism over partial justice in war crimes trials to date and suggesting that geopolitical mileage runs out quickly on the issue of sexual violence). Among the permanent members of the Security Council, China, the United States and the Russian Federation remained staunchly opposed to a Prosecutor with anyproprio motu powers. Most delegations supported the final article 13(c), subject to the stringent Pre-Trial Chamber review provisions of article 15, which were developed largely to mollify United States fears of a runaway prosecutor.
65. ICC Statute, Art. 18.
66. See Working Paper on article 54, U.M. Doc. A/CONE183/C.1/W GPM/L.1 (1998), fn.1.
67. Telephone conversation with M. Cherif Bassiouni, Oct. 2, 1998. Professor Bassiouni's early writings on this issue cede a decidedly different regime for Security Council referrals.
68. See, e.g., Observations Concerning The 1997-98 Preparatory Committee's Work, 13 NOUVELLES ÉTUDES PÉNALES (1997) at 22-27. While the ad hoc reversion is an unsatisfactory solution, I maintain my aversion to granting the Security Council any dominant role on the Court.
69. See Draft Statute for the International Criminal Court, U.M. Doc. A/CONF. 183/27 Add.1 (1998), art. 11.4, Option 2 [hereafter Rome Draft Statute]; see also "Proposal submitted by the United States of America," U.M. Doc. A/AC.249/1998/WG.3/DP.2 (1998) (requiring public announcement and State party notification of an investigation).
70. Functions and powers of the Pre-Trial Chamber are addressed in article 57.
71. See ICC Statute, arts. 56 and 57.
72. Indeed, a careful reading of articles 15(1) and 15(6) suggests that what the Prosecutor does before receiving Pre-Trial Chamber authorization is not even formally an investigation.
73. The invocation of the example of United States special prosecutor Kenneth Starr was inevitable.
74. Address of Justice Louise Arbour to the Fifth Preparatory Committee Meeting on the Establishment of an International Criminal Court, Dec. 8, 1997. Justice Richard Goldstone, the first Chief Prosecutor of the ad hoc tribunals from 1994 to 1996 went even further, suggesting that having an ICC Prosecutor who is fettered by the political control of the Security Council or States parties would raise doubts as to whether such a Court should be established at all. U.M. Press Release L/ROM/22, Jul. 17, 1998, page 21, 〈http://www.un.org/icc/pressrel/lrom22.htm〉.
75. Diane Orentlicher, No Frankenstein's Court, WASHINGTON POST, Jul. 31, 1998, at P25. These "hurdles" were inserted by the large contingent of "like-minded" delegations, who consistently and firmly supported an independent prosecutor, in an attempt to appease the United States delegation. The provisions are viewed largely as a capitulation to the United States, whose lack of any meaningful public acceptance of the text bred resentment.
76. ICC Statute, art. 16.
77. "Report of the Preparatory Committee on the Establishment of an International Criminal Court," GAOR, Fiftieth-first Session, Supplement No. 10 (A/51/10), Vol. II, p. 75.
78. See John M. Goshko, Britain Differs on United Nations Court, WASHINGTON POST, Dec. 12, 1997, atA51.
79. See U.S. Lays Down Its Cards, TERRAVIVA, Jul. 10, 1998, no. 20, at 1, 5.
80. ICC Statute, art. 17(1). The Statute is deliberately silent as to the basis of jurisdiction as well as over the resolution of competing state claims to an accused.
81. "Draft Statute for an International Criminal Court," GAOR, Forty-ninth Session, Supplement No. 10 (A/49/10), chap. II.B.I.5, U.M. Doc. A/49/355, art. 35;
82. "Report of the Preparatory Committee on the Establishment of an International Criminal Court," GAOR, Fiftieth-first Session, Supplement No. 22A (A/51/22), Vol. II (Compilation of Proposals) at 159;
83. "Report of the Preparatory Committee on the Establishment of an International Criminal Court," GAOR, Fiftieth-first Session, Supplement No. 22 (A/51/22), Vol. I (Proceedings of the Preparatory Committee during March-April and August 1996).
84. See Jeffrey E. Bleich, supra note 18 at 235-237.
85. Ibid. at 236.
86. Draft Statute; supra note 42, art. 15(2), fn. 44.
87. See Madeline Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, in Symposium: Justice in Cataclysm: Criminal Trials in the Wake of Mass Violence, 1 DUKE J. COMP. & INT'L L. 349, 366-367 (1997) (without questioning the jurisdictional primacy of the ICTR per se, Professor Morris questions the way it has been exercised in the Rwandan context of parallel prosecutions and raises a host of questions as to how concurrent jurisdiction is to be exercised in the ICC).
88. For example, domestic prosecutions in Rwanda under-punish sexual violence, and recent rulings by the ICTR addressing sexual torture are difficult to re-apply in the domestic context.
89. See text at 22, infra.
90. For the suggestion that the Court should "fill in gaps" in jurisdiction, see Amnesty International making the right choice, supra note 33, at 13-14.
91. For an excellent discussion of these issues and the problem of parallel prosecutions in the context of Rwanda, see, generally, Madeline Morris, supra note 58. 63 ICC Statute, art. 17(2).
92. Notice of any sort can impede an investigation and prosecution. Prosecutorial authority to limit the scope of non-State party notice was added to the final Statute; it did not appear in the Draft Statute, which called for "public announcement." Supra note 42, at art. 16(1). On the functions and powers of the Pre-Trial Chamber, for elaboration of the investigative authority the Pre-Trial Chamber may give the Prosecutor in cases of non-cooperation of a State, see ICC Statute, at art. 57(d).
93. Article 18, read in conjunction with article 15, suggests that Pre-Trial Chamber review of a Prosecutor-initiated investigation takes place twice: once at the preliminary examination stage and once again at the admissibility stage.
94. Draft language was abandoned which allowed the Appeals Chamber to authorize the Prosecutor to proceed while any appeal was pending.
95. With leave, pursuant to article 82(2).
96. Change of circumstances is a criterion for re-consideration of a Prosecutor's deferral, but straight appeal, as such, is unavailable. Article 18(7), in conjunction with article 19, appears to allow a State two challenges to an adverse admissibility determination: once, pursuant to article 18(4) at the preliminary stages of an investigation, and once pursuant to articles 18(7) and 19, which may be made once and only before or at the commencement of trial, unless the Court grants leave, in exceptional circumstances (article 19(4)).
97. Prior to the confirmation of charges, any challenges to admissibility or jurisdiction shall be made to the Pre-Trial Chamber. After confirmation, challenges are heard by the Trial Chamber.
98. "A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances."
99. The Statutes of the Yugoslav and Rwandan tribunals provide somewhat similar non bis in idem provisions. See ICTY Statute, supra note 12, at art. 10;
100. ICTR Statute, supra note 12, at art. 9.
101. For an overview of the double jeopardy treatment of government appeals of acquittals both in and outside the United States, see Report to the Attorney General on Double Jeopardy and Government Appeals of Acquittals, Truth in Criminal Justice ' Report No. 6, Office of Legal Policy, in 22 J. L. REFORM 833. Foreign appeals are addressed at 885-888. For example, the Canadian Charter of Rights and Freedoms is interpreted not to preclude a prosecution appeal of an acquittal on questions of law under the Criminal Code. While the double jeopardy principle is accorded "great respect" in the United Kingdom, it is allowed if the initial proceeding was so " 'fundamentally flawed' that it was not a trial at all." New Zealand, India and Sri Lanka permit government appeals of acquittals on questions of law.
102. See, e.g., Universal Declaration of Human Rights, O.A. Res. 217 A (III), U.N. Doc. A/810 (1948), art. 2;
103. International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), arts. 2, 26;
104. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted Aug. 12, 1949, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950), article 12(2); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, adopted Aug. 12, 1949, 75 U.N.T.S. 85 (entered into force Oct. 21, 1950), art. 12(2); Geneva Convention Relative to the Treatment of Prisoners of War, adopted Aug. 12, 1949, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950), art. 16; Geneva Convention Relative to the Protection of Civilians, adopted Aug. 12, 1949, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950), art. 27(3); Convention on the Elimination of Discrimination Against Women, adopted Dec. 18, 1979, 1249 U.N.T.S. 13, arts. 1, 3; International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195, arts. 1,4; United Nations Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33 (1985), art. 2.1; Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August-7 September 1990, Report prepared by the Secretariat, U.N. Doc. A/CONF.144/28 (1998).
105. Again, that the recognition of victim- and survivor-centered values as they are served in the truth commission context raises unanswered questions about the efficacy of adversarial fact-finding, and goes to the heart of conceptions of impartial justice. This is for another paper, and I am suggesting, without exploring, that "impartiality" for the purposes of complementarity has other problematic dimensions. Another question is whether a truth commission which promises amnesty to a particular individual meets the criteria for admissibility. The question of amnesties did not go unraised during negotiations.
106. As such, the problems raised by the ICTR's non-exclusive exercise of primary jurisdiction may not apply in the ICC. Morris calls this stratified concurrent jurisdiction. Morris, supra note 58 at 367. I use "may" advisedly. Presumably, complementarity eradicates the spectre of a tug-of-war between the ICC and a State, assuming its ability and willingness to prosecute powerful war criminals. It does not solve the problem of domestic resource allocation.
107. Madeline Morris, supra note 58 at 367-368.