The International Criminal Court and problems of state sovereignty

CONTENTS

I. HYPOTHESIS

II. INTRODUCTION

CHAPTER 1: THE PRELUDE TO THE ICC
1.1 Legal Principles

CHAPTER 2: FRUITLESS EFFORTS TO ENFORCE INTERNATIONAL CRIMINAL LAW UNIVERSALLY
2.1 Post-War Tribunals
2.1.1 Victor’s Justice
2.1.2 A continuation of Victor’s Justice
2.2 Pinochet: a unilateral approach
2.3 The ‘Pinochet Effect’

CHAPTER 3: THE PRINCIPLES OF THE ICC AND U.S. OPPOSITION
3.1 Complementarity
3.2 International Core Crimes
3.3 Customary law
3.4 A closer look at the law
3.5 Conditioned Sovereignty

CHAPTER 4: THE IMPACT ON SOVEREIGNTY

CONCLUSION

BIBLIOGRAPHY

DOCUMENTARY APPENDIX

I. HYPOTHESIS

“…the state, not the individual within a state, is responsible for international wrongs or for conduct in breach of international obligations. This is because [s]uch responsibility attaches to a state by virtue of its position as an international person”^[1]

The hypothesis presented in this dissertation is twofold. First, that the International Criminal Court (ICC) is an appropriate forum for enforcing international criminal law.

Second, that the ICC embodies shifting notions of state sovereignty. This dissertation will use empirical evidence to analyse the hypothesis from a particular normative framework. It will be largely empirical, analysing the progression of international law culminating in the ICC; its structure, role, and its impact on sovereignty. Some normative theory will be used during the discussion on the changing nature of sovereignty. This dissertation relies on a number of secondary sources in existing academic and non-academic literature. For an up-to-date analysis, journal articles have been consulted in addition to books. Primary sources in the form of interviews with authorities on the debate, and the relevant legislation will also be used. Evidence gathered from interviews will seek to create an informed and topical analysis of the ICC and the debates surrounding it.

II. INTRODUCTION

Because the ICC is still quite a new institution, the existing literature often focuses on the normative issues arising from the Rome Statute and not the cases that have been referred. For this reason, this dissertation will not look at the cases before the Court in depth and focus on the debate surrounding the Court. The literature regarding the International Criminal Court often debates the topic in isolation of historical events;^[2] this dissertation will aim to present a history of international criminal law and an analysis of legal principles to create a background for an informed debate and argument. Building on precedent,^[3] this dissertation will stress the importance of a historical background so that the ICC may be analysed as a continuum in international criminal law. The twofold hypothesis acknowledges not only a need to explore whether the ICC is an appropriate court but that the problems of sovereignty that it raises are fundamental to its working and its normative basis. The debate that is fundamental to this dissertation is the one between the American opposition to the ICC, notably through the arguments of Scheffer,^[4] and those who argue that the ICC is a valid institution that has the ability to appropriately enforce international criminal law.^[5] This dissertation aims to assess the strengths and weaknesses of both sides of the debate. Out of this debate, the most poignant issue that the American opposition raises is the impact of state sovereignty. This is therefore further analysed later in this dissertation drawing on addition material not necessarily focused on the ICC to try and comprehensively analyse the hypothesis. Authors have fundamental differences on issues of sovereignty, disagreeing over the impact the ICC has on sovereignty and whether it is representative of the international system. This dissertation will build on the debate using some of the literature^[6] and analyse attempts made to explain the changing nature of sovereignty^[7] as exemplified by the ICC.

The atrocities of the past century, in times of war and peace, have shocked the international community. The realisation that there is a global responsibility towards humanity to address these crimes has given new life to international law and led the way towards a new international order. After the two World Wars, the international community sought to hold the individuals responsible for such crimes accountable. These attempts were replicated during the 1990s with the international criminal tribunals in the former Yugoslavia and Rwanda.^[8] The sovereign immunity behind which the perpetrators have hidden is, arguably, being eroded by a new permanent court created to try the people responsible for crimes against humanity. The International Criminal Court^[9] was created to address the impunity afforded to these criminals and raises serious questions about state sovereignty. ^[10]

Chapter 1 of this dissertation will illustrate the prelude to the International Criminal Court through a short history of international criminal law. It will analyse how international criminal law has developed in the 19th and 20th centuries to help determine why the ICC was created and the context which warranted it. The history will also highlight issues that have arisen with sovereignty generally in international criminal law. In addition, some general legal principles will be covered so that an informed argument may be explored in subsequent chapters on the legal implications of sovereignty under international law.

Chapter 2 will assess attempts to enforce international criminal law prior to the ICC. Multilateral attempts such as the Nuremberg and Tokyo trials after World War Two as well as the more recent International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) will be analysed to assess whether they are suitable bodies for the enforcement of international criminal law. Additionally, the case of the late Chilean dictator Augusto Pinochet enables a unilateral approach to be assessed. This will illustrate whether there is a need for a permanent international criminal court.

Chapter 3 will analyse the ICC as an alternative body for the enforcement of international criminal law. The fundamental principles of the ICC will be highlighted to exemplify its feasibility as an enforcer of international criminal law; complementarity, international core crime, and customary international law. ^[11] The U.S. arguments against the Court will be analysed for their strengths and weaknesses and to assess whether the Court is an appropriate vehicle for enforcing international criminal law. The issues that opposition to the Court raise over state sovereignty will be considered.

Chapter 4 will proceed from the issues of state sovereignty to argue that the ICC embodies shifting notions of state sovereignty. This chapter will present the argument that the ICC challenges the exclusivity of the sovereignty of states and analyse Jason Ralph’s ‘Kantian world society’.^[12] The history of the Peace of Westphalia examined in the introduction will be built on in a discussion of the validity of traditional concepts of state sovereignty leading up to and after the Rome Treaty and differing theories will be analysed.

This dissertation will conclude that the ICC is an appropriate tool for the enforcement of international criminal law, if only by virtue of being superior to unilateral and multilateral approaches and that the ICC embodies a shifting notion of state sovereignty, exemplified by a ‘Kantian world society’.

CHAPTER 1 The prelude to the ICC

International law has arguably existed since the dawn of recorded history as a body of codes and conducts that created custom and certainty in international relations. Treaties between Egypt and the Hittite Empire exist from the 13th century BC.^[13] In the sixth century BC, Herodotus described how the Carthaginians and a North African tribe used a method of ‘silent trading’ to trade goods and gold without the individual parties meeting. The Carthaginians would leave goods on a beach, withdraw to their ship and send a smoke signal. The natives would go to the beach, leave an amount of gold and retreat. If the Carthaginians, when returning to the beach, felt the gold was insufficient, they would return to their ship and send a second smoke signal. The natives would leave more gold, or cancel the bargain, until a deal could be struck.^[14] This predictability, a sense of rules that govern the relations between the two parties, is a form of international law in much the same sense as customary law today. For example, the rules of war were long entrenched in international customary law before they were codified in the Geneva Conventions. The consistency in applying these rules among states created an obligation, opinio juris, among states that the general practice was custom and therefore law. To understand international law, one has to appreciate that international custom, although not codified, is a strong force in international relations. Out of international custom a norm or principle may become jus cogens (compelling law), and will become binding on all states regardless of international treaties that might state otherwise. This is an important factor with regard to the International Criminal Court as it is generally accepted that jus cogens includes genocide, torture and wars of aggression. Although all states may not have signed treaties on the prohibition of these acts, they are considered illegal under customary international law and therefore prohibitions that are universally binding.

Although the ICC is relatively new, its roots are deeper than often acknowledged.

International law is not strictly a modern tradition, yet it has changed throughout the ages to encompass different meanings. In the Middle Ages circa 1300, laws developed through the Catholic Church. The idea that a universalising law existed that was allencompassing proliferated. That notion began with Aristotle and then the Stoics, but it was widely propagated through the Church.

During the Classical age, Hugo Grotius published his book; On the Law of War and Peace.^[15] Grotius asserted in 1625 that natural laws would be the same regardless of the existence of the divine, thereby removing the pious aspect associated previously with international law. Thomas Hobbes supplemented these ideas with his ideas of ‘natural rights’.^[16] Natural rights are the rights of humans regardless of whether they are enforced by a man-made law or government. John Locke, another prominent western philosopher, argued famously that ‘life, liberty and property’^[17] were inalienable, natural rights. The idea that ‘human rights’, a concept that is arguably interchangeable with ‘natural rights’, were conceived with the United Nations Charter (or even in the 20th) century is a widespread misapprehension.

The 19th century brought international law away from the sphere of natural or universal law with the inception of positivism. Positivism asserts that law is an “entirely human institution”^[18] and that laws are made through the conscious creation of norms. This idea stemmed again from Hobbes who stated that life in the ‘state of nature’ would be “solitary, poor, nasty, brutish and short”^[19], unless humans created a contract of rights and duties that would be upheld through the state. This meant that there was no law of nature, just the laws that are made by man in a scientific, objective way so that states may exist and co-exist peacefully. Positivism was first “coined in the 1830s by the French social philosopher Auguste Comte, when it meant ‘scientific’ or ‘objective’ or ‘empirical’, in contrast to speculative or religious”.^[20]

With the 20th century, international law and international criminal law were forced to advance. After the butchery of World War One, American President Woodrow Wilson became an advocate for a new, ultimately fruitless system which he hoped would prevent such atrocities; the League of Nations. With this came the trial of “ex-German Emperor, Kaiser Wilhelm II, for ‘the supreme offence against international morality and the sanctity of treaties”^[21] under Article 227 of the Treaty of Versailles.^[22] This was not the first time individual criminal responsibility under international law was enforced, though it was the first time it was widely acknowledged. Activities such as slave trading and trafficking were both crimes under international law during the 1800s,^[23] a factor international law historians often overlook.

Following the Second World War and the realisation of the Holocaust, the realm of international criminal law expanded drastically. Again, people felt a pressing need to prevent such an abomination from occurring again. There was a sense of ‘euphoria’ among international lawyers over the rapid progress that was being made. The Nuremberg and Tokyo trials occurred and there were even plans for an international criminal court in the late 1940s. The International Law Commission (ILC) brought the idea to the U.N. General Assembly but it was rejected on December 12, 1950. The League of Nations was disbanded and the United Nations was created in 1945 with the first world court, the International Court of Justice. This feat, while hugely significant, was overshadowed by the division of the world into rival camps in the Cold War. Progress, however, was made; Jose Zalaquett outlines three stages over which international criminal justice developed. ^[24]

The first stage was the building of the international humanitarian order principally by the United Nations. Second was the birth of human rights movements. “Amnesty International founded in 1961, acquired commanding presence in the late 60s,”^[25] and other human rights organisations used their political prowess to address international crimes by criticising rogue states and defending the victims of torture and oppression. These organisations were effective in some respects but lacked any bona fide international criminal justice system to validate their protests. Third, in the 1980s human rights became a priority with the collapse of the Soviet Empire and the descent of postcolonial states into uncertainty and internal warfare.

The end of the Cold War meant that the bi-polar power struggle, which had created a form of security and stability, was over. Multi-ethnic societies that had been underpinned by the system collapsed and internal power struggles erupted, serving to encourage fundamentalism, human rights violations and authoritarianism. There was a broad consensus in the West about the need for international criminal justice;

“[A]critical factor[which] contributed to a greater need for international criminal justice was the increasing importance of human rights thinking, soon to become a form of ‘secular’ religion. The emphasis on the need to respect human dignity and consequently to punish all those who seriously attack such dignity led to, or at least gave strong impulse to, the quest for international criminal justice.”^[26]

The international community strived to address the issue of the prosecution of crimes against international law, notably crimes against humanity, genocide and torture. This was done in two ways:, by the establishment of the Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda; and by the creation of a permanent international criminal court.

In 1996, a Preparatory Committee on the Establishment of an International Criminal Court was established by the General Assembly. The ICC Rome Statute “entered into force on 1 July 2002, and its first Judges were elected in February 2003.”^[27] As of April 2008, the court has 105 member states.

1.1 Legal Principles

Certain principles of international law in general need to be understood to examine how international criminal law operates. International law is unlike domestic law as it is built from the ground upwards. The international community has neither sovereign rulers nor any parliament to pass legislation. States have historically agreed to respect international law through custom and drafted laws through treaties and statutes that gain consensus among the respective states. Even the notion of drafting international law can upset the most sovereignty-conscious states.^[28]

There are two forms of international law; treaty and custom. Treaty law consists of statutes that have been drafted and signed by party states.^[29] The ICC was formed by the ratification of the Rome Statute and is therefore treaty law. The states party to it have signed and agreed to become members and agreed to its rules and codes of conduct. Customary law is law that may not be, but can be codified and represents a consensus by states through general practice. Customary law is binding even though it may not be drafted. This is because states have a legal obligation over the way they act through opinio juris. Opinio juris occurs when a state acts out of an obligation of legal practice. Customary international law is agreed to be indisputable and universal by its consistent practice by states. As aforementioned, jus cogens is a form of customary law whereby the principle is so fundamental and universal that a state cannot go against it through practice or treaty. The crimes that the International Criminal Court can prosecute are accepted as jus cogens as are slavery, apartheid, and the use of force affecting the territorial integrity of another state.^[30]

A state is obliged only to laws that it has agreed to itself. This is highly important as it preserves the sovereignty and autonomy of states to act as they wish; binding them only to laws to which they have agreed. A state cannot be forced to join a treaty and no state can prohibit treaty law passed by other states. This is especially salient with regards to the ICC. A state cannot force another not to join an international treaty but it can withhold its membership, thereby reducing the efficacy of the treaty. For treaties to become law they must be enforced through participation and widespread membership. This is particularly difficult when the non-cooperating state is especially powerful, like the United States. The ability of powerful states to refuse to act in accordance with a treaty will seriously undermine its prospects of becoming customary international law and greatly reduces the chances of acceptance within the international community as legally binding. The United States does not need to be party to the statute to influence it proceedings. It can simply refuse to cooperate through public condemnation, refusal of extradition and the withholding of requested evidence.

Under international law, suspected criminals can be tried where the crime was committed under the principle of territorial jurisdiction. It is also an important aspect of sovereignty that nationals be tried by a court of their host country. Thus, if a national of a state commits a crime in a foreign country, the sovereign national state has jurisdiction over the offence once the national has returned to his or her own country but the territory on which the crime was committed can claim jurisdiction as well. Some crimes are deemed so abhorrent that they are crimes of universal concern and states have an obligation to the world community to address them. These obligations are erga omnes, such as in the case of genocide and war crimes. This is a fundamental principle of international law and is tied in with jus cogens. It means that notions of territorial and national sovereign jurisdiction over crimes are extended to ‘universal jurisdiction’. Universal jurisdiction deems crimes such as genocide and torture to be crimes against the world community and therefore of interest to all. This principle is enshrined within the U.N. Charter under Article 24, Section 1, which states;

“In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”^[31]

With universal jurisdiction, any state can seize and indict someone suspected of erga omnes crimes using their domestic laws. The importance of this principle will be demonstrated when the case of the late Chilean dictator Augusto Pinochet is analysed. Contrary to belief, while some states do have obligations of extradition through bilateral or multilateral agreements, there is no obligation to extradite a suspect under customary law.

This chapter has illustrated the history of international criminal law. Late in the 20th century the international community, acting through the United Nations, developed human rights law and international criminal law to address problems that were seen as common to humanity. This historical background has illustrated how the history of international law led up to the creation of the ICC. The history helps to analyse whether the ICC is a natural progression that builds on previous attempts at international justice and to assess whether the ICC is part of a movement to promote common norms and values among states that pose serious questions about sovereignty and international society. The principle of unanimity, the legal status of individuals, erga omnes, and universal jurisdiction are terms that need to be understood so that an informed debate can be had over the ICC and the effect of international criminal law on sovereignty. The following chapter will analyse how international law has been enforced multilaterally, through ad hoc courts, and unilaterally, using the Pinochet case as an example. By assessing the viability of these methods, it can be determined whether there is a need for a permanent international criminal court.

[...]

^[1] Kriangsak and Kittichaisare, ‘International Criminal Law’, OUP, Oxford University Press, 2001, p. 7

^[2] See Marler, Melissa K, ‘The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute’, Duke Law Journal, Vol. 49, No. 3. 1999, pp. 825-853, and Sheffer, D.J. ‘The United States and the International Criminal Court’. American Journal of International Law, Vol. 93, No. 1, 1999, pp.12-22

^[3] See Charney, Jonathan I. ‘Progress in International Criminal Law?’ The American Journal of International Law, Vol. 93, No. 2, Apr. 1999, pp. 452-464., and Kaul, Hans-Peter. ‘Construction Site for More Justice: The International Criminal Court after Two Years’, The American Journal of International Law, Vol. 99, No. 2., Apr. 2005, pp. 370-384.

^[4] See Sheffer, D.J. ‘The United States and the International Criminal Court’. American Journal of International Law, Vol. 93, No. 1, pp.12-22 and Marler, op. cit. pp. 825-853

^[5] See White, Jamison. ‘Nowhere to Run, Nowhere to Hide: Augusto Pinochet, Universal Jurisdiction, the ICC, and a Wake-up Call for Former Heads of State.’ Case Western Reserve Law Journal, 1999, pp. 169- 170 and Rancilio, Peggy E, ‘From Nuremberg to Rome: Establishing Criminal Court and the Need for US Participation’. University of Detroit Mercy Law Review. 2001, p. 329

^[6] See Bharadwaj, Atul, ‘International Criminal Court and the Questions of Sovereignty’, Strategic Analysis: A Monthly Journal of the IDSA, Vol. XXVII, No. 1, Jan-March 2003, and Shinoda, Hideaki, ‘Re- Examining Sovereignty: From Classical Theory to the Global Age’, London, Macmillan, 2000

^[7] See Ralph, Jason, ‘Defending the Society of States’, Oxford, OUP, 2007, and Buzan, B. ‘From International to World Society?’ English School Theory and the Social Structure of Globalisation, Cambridge studies in international relations, Cambridge, CUP, 2004

^[8] International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Statute, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) 9; International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, Statute, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec., at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994)

^[9] Article 1 of the Rome Statute of The International Criminal Court, United Nations Conference of Pleipotentiaries on the Establishment of an International Criminal Court, art. 1, U.N. Doc. A/Conf. 183/9, 1998 (hereinafter the ICC Statute or the Court)

^[10] ‘Sovereignty’ and ‘state sovereignty’ are used unanimously throughout this dissertation.

^[11] Fredriksson, Ida., ‘The International Criminal Court: An End to Impunity?’ Göteborg, Department of Law, 2002, pp. 25-29

^[12] Ralph, ‘Defending the Society of States’, 2007

^[13] Neff, Stephen C. ‘A short history of international law’, in Evans, Malcolm D. Ed. ‘International law’, Second Edition, OUP, Oxford, 2006, p.31

^[14] Ibid. p. 30

^[15] Grotius, H, ‘DE Jure Belli Ac Pacis. Libri Tres, Carnegie Institution of Washington, Washington DC, [1625], 1946

^[16] Hobbes, Thomas, ‘Leviathan’, 1651, Michael Oakeshott (ed.), Oxford, 1956

^[17] Locke, John, and Peter Laslett. ‘Two Treatises of Government’. Cambridge Texts in the History of Political Thought. CUP, Cambridge, 1988

^[18] Neff, ‘A short history of international law’, p.39

^[19] Hobbes, op. cit, p. 83

^[20] Neff, op. cit, p.38

^[21] Cassese, Antonio. ‘International Criminal Law’, p.732

^[22] Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43, Article. 227 (hereinafter Treaty of Versailles)

^[23] Cassese, loc. cit.

^[24] Zalaquett, Jose, ‘The Pinochet Case: International and Domestic Repercussions’, University of Toronto Faculty of Law, Toronto, 2001, p. 47

^[25] ibid.

^[26] Cassese, op. cit. p.724

^[27] ibid. p.728

^[28] Kahn, Paul W. ‘Why the United States is so Opposed’, Crimes of War Project magazine, November 2003

^[29] Henkin, Louis, ‘International Law: Politics and Values’, Martinus Nijhoff Publishers, The Netherlands, 1995, p. 54

^[30] Article 2 (4) of The Charter of the United Nations, June 26, 1945, 1 UNTS XVI (hereinafter UN Charter)

^[31] UN Charter, Supra note 30, Article 24, Section 1