The International Criminal Court from a Liberal Perspective

Contents

1. Introduction

2. The International Criminal Court
2.1 The Rome Conference
2.2 Institutional Design

3. Liberalism
3.1 Core Assumptions
3.2 Republican Liberalism and Human Rights Regimes

4. Explaining the Jordanian Puzzle with Liberalism
4.1 Political System
4.2 Civil Society and Public Opinion
4.3 Economic Situation
4.4 Jordan's Position Towards the ICC

5. Conclusion

Works Cited

1. Introduction

The idea of creating an international criminal court already came up in 1930. But World War II broke out before any country had ratified the convention concerning atrocities in armed conflict. After the war, international justice became reality for the first time in history with the International Military Tribunals of Nuremberg and Tokyo. In the fol­lowing postwar period, the UN International Law Council (ILC) drafted statutes on a permanent court in the 1950's but there was no progress until the end of the Cold War. In response to a request by Trinidad and Tobago in 1989, the ILC drafted a new statute and the UN General Assembly established a Preparatory Committee in 1996 in order to prepare an international conference. This conference was held in Rome and involved 160 states, 33 intergovernmental coalitions and a coalition of 236 NGOs. A final pro­posal was adopted on 17 July 1998 with 120 votes in favor, seven against and 21 absten­tions. The seven votes against came from the US, China, Israel, Iraq, Qatar and Libya. After the 60 required ratifications had been reached, the statute entered into force on 1 July 2002 and the International Criminal Court (ICC) was officially established. (Fehl 2004: 360-362; Gallarotti/Preis 1999: 95) Today, 121 states have ratified the Statute^[1].

What seems to be the greatest puzzle about the “ICC-story” is the fact that the Statute was adopted despite US opposition. It seemed impossible that an independent court could be created without the support of the US. And it is indeed remarkable that so many states agreed on a strong, independent ICC although the US also launched an act­ive campaign against it and tried to pressure states into signing bilateral agreements in order to prevent US citizens from becoming subjects to ICC jurisdiction. But, in my opinion, this is not the only puzzle, because there was another state that acted differently than expected. This state is Jordan, who was the only Arab state not only to support the ICC but also to join the Like-Minded Group prior to the conference. It is not surprising that authoritarian regimes opposed the court. It is surprising however, that Jordan was the exception to that rule and I think that decision deserves to be examined further.

While republican liberalism offers an explanation to US behavior regarding the ICC, it fails at explaining the Jordanian case. It predicts that authoritarian regimes will side with well established democracies in opposition to binding international human rights regimes. Although this did not count for Jordan, I still think that liberalism can explain why the Kingdom supported the ICC. In order to prove this hypothesis, I will outline the basic assumptions of (republican) liberalism. Afterwards I will briefly describe the political, economic and societal situation in Jordan in order to identify the aspects needed to apply the theory. Finally, I will show how liberalism can explain why Jordan as an authoritarian regime supported the ICC although it was not “supposed to”.

2. The International Criminal Court

2.1 The Rome Conference

During the conference, two key negotiation blocks argued about conflicting issues that circled around three major aspects of the court's institutional design: the court's (in-)de­pendence, the rights of the prosecutor and the possibility of opt-outs. These two blocks were the Like-Minded Group (LMG) and the P-5 led opposition (P-5).

The LMG emerged in 1995 as an informal coalition of states pushing for a conference and then became one of the negotiation blocks. Its members were small and middle powers supported by the NGO coalition for the ICC. In 1997, it had 42 members, in­cluding many developing and most of the European countries, Canada, the Rio Group and Jordan. By 1998, the majority of states backed its position. The P-5 was the other key negotiation block and its members were the five permanent members of the UN Se­curity Council, most of the developing countries and the Arab world. Interestingly, France and the UK, two of the five permanent members of the Security Council shifted their position during the conference, left the P-5 and joined the LMG. (Fehl 2004: 375)

The first debated issue was the question of who should have the right of initiative. The P-5 wanted to restrict this to the Security Council to prevent an independent prosecutor, while the LMG opposed any role of the Security Council in investigation decisions. The second issue concerned the Security Council's right to defer a case by a regular decision for one year with the possibility to renew this veto indefinitely. The LMG opposed this, while the P-5 wanted to introduce a veto for every permanent Security Council member. The jurisdiction over non-members of the statute was the third issue and was decisive in losing US support. Finally, the possibility to opt out on war crimes for seven years caused further dissent. The P-5 wanted a ten year opt out for all crimes except genocide, while the LMG opposed any opt out possibility in general. (ibid.: 375-376)

2.2 Institutional Design

The final statute entering into force in 2002 established a permanent ICC in The Hague. It comprises four organs: the Presidency that administers the Court and is elected for three years by the Judicial Divisions or Chambers. The Chambers include a Pre-Trial, a Trial and an Appeal Division and comprise of 18 judges that are elected by the As­sembly of State Parties. This Assembly also elects the Prosecutor and can amend the statute. The Prosecutor is elected for nine years and examines information, investigates and prosecutes suspected crimes. Finally, there is the Registry that looks after the non-judicial aspects of administration and service of the court. (Gallarotti/Preis 1999: 96)

The ICC plays a complementary role to national courts; it can only act if the state with jurisdiction is either unwilling or unable to bring a suspect to justice. Nevertheless, the court has automatic jurisdiction over four core crimes: genocide, crimes against human­ity, war crimes and aggression. The ICC can exercise jurisdiction under the following conditions: A situation can either be referred to the court by a state or the UN Security Council, or the Prosecutor initiates an investigation. If a situation is referred to the court by a state or if the Prosecutor initiates an investigation, either the territorial state, i.e. the state in which the crime took place, or the state of which the suspect is a national must be a member of the ICC. If neither is a member at least one of them has to accept the ICC's jurisdiction. If the Security Council refers a situation to the court, ICC jurisdiction covers all UN members (Art. 12). Challenges to its jurisdiction can come from the ac­cused, the state with jurisdiction or a state whose acceptance is required under Art. 12. (ibid.: 96-97; http://www.icc-cpi.int/Menus/ICC/ Structure+of+the+Court/)

3. Liberalism

Classical Liberalism emphasizes the causal importance of the relations between state and society, which are shaped by domestic institutions, economic interdependence and ideas about the provision of national, political and socio-economic public goods. Its fundamental premise is that “the relationship between states and the surrounding do­mestic and transnational society in which they are embedded critically shapes state be­havior by influencing the social purposes underlying state preferences” (Moravcsik 1997: 516). The expected behavior of a state thus reflects not only its own preferences but also the composition of preferences of all states linked by patterns of significant policy interdependence. As for the liberal conception of power, it is assumed that a state's willingness to expend resources or to make concessions is not a function of cap­abilities but of preferences. (ibid.: 523) Andrew Moravcsik claims that this theory applies both “to liberal and nonliberal states, economic and national security affairs, conflictual and nonconflictual situations and the behavior both of individual states ('foreign policy') and of aggregations of states ('international relations')” (ibid.: 515).

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^[1] A list of all states that have ratified or signed the statute is available at http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en (rev. 16 June 2012)