Relationship between National Jurisdictions and International Criminal Court - Essay Example

The Relationship between National Jurisdictions and the ICC represents a Major Challenge for the Edifice of International Criminal Justice as a Wholeand despite the recent Emphasis on Positive Complementarity, this Relationship Remains Ambiguous Copyright Abstract The International Criminal Court is said to be arguably the most influential international organisations created since the United Nations. However, despite the fact that 120 nation states signed the Rome Statute on July 17, 1998 to give birth to the International Criminal Court, it is felt that the jurisdiction of this Court is far too restrictive and often likely to be at odds with the national jurisdiction of nation states. Nevertheless, a ray of hope is now available to the world and it is likely that the world will now be in a position to ensure that national governments will no longer be in a position to shield persons responsible for committing the most heinous crimes known to man. In addition, it is likely that with the passage of time, the role of the International Criminal Court will become more pervasive to enable the global community to create a world in which injustice will not prevail. This essay presents a discussion about the relationship between national jurisdictions and the International Criminal Court presenting a challenge to international criminal justice despite the emphasis on positive complementarity. Declaration I certify that, except where cited in the text, this work is the result of research carried out by the author of this study. _____________________________________________ Name and Signature of Author April 2009 This write - up is for an essay on National Jurisdictions and the International Criminal Court. . Biographical Sketch Acknowledgments Contents Introduction 1 The Meaning of Positive Complementarity 3 The Problems with the ICC’s Ability to Prosecute International Criminals 5 Conclusion 16 Bibliography/ References 19 (This page intentionally left blank) Introduction The ratification of the Rome Statute on April 11, 2002 and the coming into existence of the International Criminal Court (ICC) on July 1, 2002 marked the end of nearly fifty years of efforts to create a permanent global court for the prosecution of particularly heinous crimes of global significance (Burke – White, Pp. 5) and (Schloenhardt, Pp. 1 – 2). In the nations of Western Europe, particularly in England, public pressures had existed since the end of the First World War for the prosecution of those who were generally considered as being responsible for war and a consensus began to emerge about gross violations of ‘laws of humanity’ being intolerable (Schabas, Pp. 3). The adoption of the Rome Statute which had established the ICC was a major step in the development and evolution of international criminal law. At that time, the United Nations Secretary General, Mr, Kofi Anan, had announced that “[i]mpunity has been dealt with a serious blow (Burke – White, Pp. 54). However, despite the fact that the ICC Statute has received the more than sixty ratifications necessary for it to come into force, the reality of the ICC is far more restrictive and it is noted that neither the legal mandate, nor the legal resources made available to the ICC are sufficient to enable it to fulfil the world’s high expectations. Opposition to the ICC remains vehement in China and the United States of America with debilitating instances including questions related to jurisdiction and sovereignty violations (Model United Nations Conference at UCLA, Pp. 1 – 3). It is only possible for the ICC to investigate and prosecute crimes that the national bodies cannot or refuse to investigate. The ICC was created by international treaty and the preamble of the Rome Statute for the creation of the ICC clearly states that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes" and that the ICC will compliment or supplement this duty of states in exercising their jurisdiction over international crimes (Rome Statute of the International Criminal Court, Pp. 1 – 2). However, the tensions between the fundamental principles of sovereignty and non – intervention on the one hand and considerations related to the enforcement of individual justice values already established by the international order have been evident for some time (Birdsall, Pp. 114 - 118). States are now increasingly expected to comply with the norms that are increasingly taken for granted and which are now increasingly taken as being the rules of an international society, but norm development is also characterised by resistance from individual states and the problem of jurisdiction reflects this. This essay presents a discussion about the challenge of national jurisdictions to the functioning of the ICC in the edifice of international criminal justice despite a recent emphasis on positive complementarity. The Meaning of Positive Complementarity Complementarity refers to the scheme of administering jurisdiction over the prosecution of international crimes by which the ICC and the nation states will share the process of prosecuting international crimes (Juyal, Pp. 4 – 6) and (Birdsall, Pp. 116 - 118). Thus, the ICC acts only if a nation state is genuinely unable or unwilling to prosecute by itself. Complementarity gives both the nation state and the ICC a right to prosecute international criminals, but both the ICC and the institutions of a nation state cannot simultaneously exercise the right to prosecute. The Complementarity Principle determines whether the national or the international institution will prevail, but under the Rome Statute national courts have a higher priority compared to the ICC. Thus, national courts still retain the primary responsibility for investigation and prosecution with the ICC acting to strengthen national courts and also to ensure that internationally accepted standards for human rights are maintained. Clearly, the international community will not interfere with the sovereignty or domestic affairs of a nation state if the state is observing established international standards and acting to enforce international legal obligations, with a capacity for doing so. The complementarity principle recognises that sovereignty involves obligations as well as rights and the will of the international community now leans towards protecting the most fundamental of all human rights in all parts of the world. The ICC operates in instances when national courts have failed to adequately prosecute and convict those responsible for serious and heinous crimes. Complementarity means that the ICC acts as a court of last resort and an indirect enforcement mechanism to strengthen compliance for international norms with a long – term effect of incorporating norms into the international order (Birdsall, Pp. 116 – 118) and (Glasius, Pp. 61 – 76). States now face a possibility of sanction if they do not follow international norms and they are under pressure to apply internationally accepted norms in their national courts. Thus, international judicial intervention can only occur under very specific circumstances. It was possible to give ICC power over the national judicial courts, but nation states would not have agreed to the ICC having power over national institutions for justice which would have resulted in a permanent compromise over sovereignty. The possibility of ICC intervention in cases where nation states have demonstrated an ‘unwillingness’ or an ‘inability’ to prosecute has already been taken as problematic because this opens up the possibility of the ICC being used as a form of an ‘appeals court’. However, it is important to understand that ICC only prosecutes serious cases of gross human rights violations. Complementarity is one of the fundamental principles behind the establishment of the ICC and effects admissibility of cases to the ICC, the ability of the ICC to exercise jurisdiction and the willingness of states to cooperate to deter and to punish international criminals. The Problems with the ICC’s Ability to Prosecute International Criminals The agreement reached about the ICC in the Rome Statute provides that this international Court have jurisdiction over the most serious of all crimes, including the crime of genocide, war crimes and crimes against humanity together with a fourth type of crime that was later added, the crime of aggression (Birdsall, Pp. 118 – 120). Thus, although an attempt is made to include only those crimes within the mandate of the ICC whose criminality is beyond dispute, such crimes are very rare and subject to national perspectives, interpretations and emotions. Some states were not satisfied with the present list of crimes on which the ICC can act and as an example, Trinidad and Tobago suggested that drug trafficking be included in the list, but it was felt that the ICC could not investigate such matters sitting in a far off location to where the criminal activity was taking place and that the ICC was certain to become overburdened. The question that arises from the previous is whether the ICC can adequately investigate and prosecute even those crimes that are included in its mandate when it is remote from the actual incidence in war zones that can be closed to even journalists or humanitarian aid agencies? The crime of aggression has proved to be impossible to define and this crime will be considered by the Assembly of State Parties in 2009 (Gilbert, Pp. 407). The trigger mechanism that is expected to result in the ICC taking notice of the criminals and their crime is through complaints filed by states, referrals by the United Nations Security Council and recognition of the experiences of victims, particularly women and children, in armed conflict and the criminal law process (Glasius, Pp. 23). Thus, it is possible for actors to block the trigger mechanism and many crimes are never likely to even receive any attention at all. The United Nations Security Council will only refer a case to the ICC if a political will exists to do so. However, Article 98 of the Rome Statute expressly prohibits the ICC to request the surrender of a fugitive from justice if this was to require the requested state to act inconsistently with claims by an alleged offender to state or diplomatic immunity or with other international obligations associated with the surrender requiring consent of a third state (Gilbert, Pp. 412). It is important to remember that even after the term of office of a state official expires, immunity against acts done in an official capacity continues. Thus, it is likely that it will be difficult to prosecute those who are most capable of perpetuating even the most heinous of the crimes of which the ICC is authorised to take notice. In accordance with Art 34 of the 1969 Vienna Convention on the Law of Treaties, international agreements are only binding on those who have entered into such agreements and this means that ICC cannot force itself on those that have not ratified the Rome Statute. Thus, it appears that although there is a lesser chance now of impunity ruling the day, post – conflict justice is still at a formative stage, despite the fact that the international community now expects that a response to international crime ought to be presented. There are still many political reservations that exist among nation states against a broadening of the mandate of the ICC and it is these reservations that render the international criminal justice system ineffective. The ICC is subject to temporal constraints and this means that it can only act on crimes committed after the entry into force of the Rome Statute after July, 2002. The ICC can determine if national institutions are trying to shield persons accused or if attempts are made to try to avoid impartial prosecution (Bantekas, Pp. 379 - 390). The establishment of truth commissions whose objective is to avoid criminal proceedings ought to become a matter of interest to the ICC, but it is important to understand that an international institution that is very remote from areas in which crimes have occurred is only likely to consider those national judicial investigations that involve very substantial and gross violations of human rights that the ICC is authorised to take into cognisance. The granting of amnesties under national law does not release individuals from responsibility under international law, but the fact remains that if a state exists it is likely to be difficult to enforce international law over national law especially if the culprits are within the territories of a nation state granting amnesty. Thus, it will appear that the ICC depends on the will of nation states ratifying the Rome Statute to uphold international norms within their domestic legal systems and although the more developed nations may be more willing to comply, the less developed nation states are likely to pose a problem. At the time of writing this essay, the ICC has jurisdiction over natural persons and it does not have jurisdiction over legal entities or nation states. In addition, the ICC does not have jurisdiction over persons who are below the age of eighteen at the time that a cognisable offence was committed (Schabas, Pp. 64 - 70). It is possible for the Security Council to effectively veto prosecutions by the ICC by adapting a resolution under Chapter VII of the United Nations Charter to request the ICC to suspend prosecution on an annual basis and in this case the ICC cannot proceed. The previously mentioned power of the Security Council is difficult to understand because the ICC exists to try crimes of the gravest nature and it is unlikely that the Security Council will want to extend protection to persons accused of such crimes. The matters that come before the ICC are invariably intertwined with political factors and this means that it is often likely that the ICC will be confronted with severe impediments to the administration of justice (Shaw, 1065 – 1066). However, the task of the ICC is to respond to matters before it on the basis of international law and this too presents impediments to the ICC except for the most heinous of all crimes. Not all of the world’s more powerful guardians of human rights and democracy have well accepted the Rome Statute. United States of America has constantly presented an opposition to the ICC and during the Presidency of Mr. Bush this country opted out of the ICC and the Rome Statute. United States and the United Kingdom had been concerned that with a large number of troops stationed outside of these nation states, citizens could become embroiled in politically motivated accusations presented to the ICC (Lechterman, Pp. 1 – 4). In addition, United States of America strongly opposed the type of jurisdiction granted to the ICC under Article 12 of the Rome Statute (Bantekas, Pp. 378 - 379). The most serious objections to the ICC emanating from the United States of America included those involving a lack of checks and balances on powers of ICC prosecutors and judges, the dilution of the United Nation Security Council’s Authority over international criminal prosecution and the lack of an effective mechanism to prevent politicised prosecution of United States service members and officials. Perhaps, another important consideration behind United States opposition to the ICC was related to preventing the ICC from holding in check United States foreign policy by holding in check those who implement that policy (Reus – Smit, Pp.172 – 176). Complementarity cannot protect a state that believes that a particular action undertaken by it in good faith, e.g. a military strike against a particular target, under international law is legitimate when the ICC prosecutor does not agree. Action initiated in the ICC can constrain the use of military power by the United States of America. Thus, the ICC is viewed by the world’s greatest superpower as a global institution that should exercise coercive power against individuals, but not states and this means that it is likely that other nations, even those who have ratified the Rome Statute, may think similarly. United States of America and perhaps other developed nations of the West would have preferred coercive authority to remain with the more powerful nations in the United Nations Security Council rather than being shifted into the hands of prosecutors and judges of the ICC. Reluctance exists not only on the part of the United States of America, but also on the part of many nation states to substitute politics with law. It is politics, national interest and national emotion that is likely to interfere most with the workings of the ICC, except when the political sentiments of the more powerful nations does coincide with the interests of the ICC. Thus, it is unlikely that the ICC can even act against a vast majority of criminals who may have committed grave violations of human rights around the world. However, the ICC views itself as a substitute for the failure of politics. Nevertheless, it is important to understand that by ratifying the ICC statute, governments commit themselves to the principles of international norms and prosecutions at a greatly reduced political price. After the Bush administration in the United States of America unsigned the Rome Statute of the ICC, it proceeded to enter into bilateral non – surrender agreements with every single sovereign state that would agree to this for United States citizens (Ralph, Pp. 156 – 163). Although such efforts are said to be an attempt to undermine the ICC, they are nevertheless in accordance with United States interests that are to be found in Article 98 (2) of the Rome Statute, which will not permit the ICC to force a state to hand over persons by acting inconsistently with existing international agreements into which a sending state is involved. Thus, the bilateral treaties entered into by the United States of America had the effect of ensuring that United States citizens could not be handed over to the ICC to face charges and that they remained within the reach of the United States justice. The so called status of forces agreements (SOFAs) for United States forces overseas ensured that any offence committed by US forces personnel remained within the jurisdiction of United States law. The Bush administration utilised unusual coercion in pursuing its interests to force other states to sign the previously mentioned agreements and military aid was suspended to thirty – five states that refused to sign the agreements in question. The US Congress continued to link aid to non – surrender agreements and a key US ally, Jordon stood to lose $ 250 million in aid if it did not sign the non – surrender agreement. However, European governments in the European Union remained committed to a European identity and encouraged European states not to sign bilateral treaties with the US. Thus, many states were forced to choose between supporting the US position or the European stance. It is possible for states to prevent their citizens being tried by the ICC by entering into bilateral agreements with other states and it is likely that states with substantial interests in joint military operations will use this tactic to prevent the ICC from acting. The ICC still lacks a centralised structure in the international legal system and this means that it is not able to provide for an integrated judicial system and complementarity assigns cases to the national judicial system or to the ICC on a case by case basis (Juyal, Pp. 21). The list of crimes that the ICC can take cognisance of is still far too restrictive and its ability to overcome impediments placed in its workings for all except the most heinous and deranged of criminals is far too large for the ICC to function most effectively in all cases. In view of the fact that the types of crimes that the ICC can take cognisance of are likely to be covered under the universality principle, it is likely that the global community will take notice of such crimes by itself. However, should a citizen of a nation commit crimes against foreign nationals on foreign soil, then it is likely that the ICC may be useful in bringing legal action against individuals responsible for such crimes. However, the actions of the United States of America demonstrate that it is possible for determined governments accustomed to indulging in military action in an international setting to circumvent the ICC in favour of their national jurisdiction. The ICC is dependent on the will of signatory states to prosecute and its utility at this point is restricted to providing a concerted platform for action. Perhaps, if the list of cognisable crimes were to be expanded, the practical utility of the ICC to the world community could be enhanced. Many smaller and less developed states find it difficult to prosecute criminals who may have fled to other nations. However, in its present form, the ICC remains a moral reminder to the world that certain norms of international humanitarian law ought to be respected and sacrosanct. Perhaps moral pressures now exist on countries that have accorded refugee status to dubious individuals escaping their countries of nationality and such countries will now be forced to take a closer look at political refugees prior to a grant of asylum. The relatively wide scope of territorial jurisdiction for the ICC is compromised by a narrow scope of subject matter and only the ICC can ultimately decide if it has jurisdiction in a case (Juyal, Pp. 29 – 30). However, the ICC is much restrained by the will of other nation states and the United Nations Security Council. In addition to referrals by state parties and the United Nations Security Council, the ICC Prosecutor may receive information about the commission of crimes from individuals and NGOs to initiate investigations proprio mato (Ukuni, Pp. 14). If after consideration of any preliminary information, the Prosecutor of the ICC is satisfied that sufficient grounds exist to warrant an investigation, the Pre – Trial Chamber is requested by the Prosecutor to authorise an investigation. The investigation and trial of the President of Sudan was authorised under trigger mechanisms initiated by individuals and NGOs. If an investigation is authorised, the prosecutor must notify relevant parties. However, an investigation will only be authorised if sufficient evidence is available from states, NGOs or other reliable sources to proceed. Criminal investigations are intrusive into the internal affairs of a state and for a prosecutor to initiate investigations within the territory of a state without the cooperation of the state is likely to be difficult to say the least. Unless the crime is glaringly obvious or the state extends its cooperation in an investigation, it is likely that the prosecutor of the ICC will be doomed to failure. Thus, the ICC, its prosecutor and the Pre-Trial Chamber must by itself determine if an investigation is worthy of being pursued. Clearly, it is impossible for the ICC to be influenced to carry on with a prosecution unless it receives evidence and cooperation with a hope of success. Thus, even though the ICC remains a hope for those suffering from injustice, the political will of states and ability to gather credible evidence from a far off remote location determines if justice can ever be done. However, once a prosecution has commenced, it is difficult to un-trigger the prosecution and this means that those responsible for the most heinous of crimes are likely to be brought to justice (Ukuni, Pp. 36 – 37). Conclusion It is clear from the previous discussion that the ICC is a step in the right direction and a ray of hope that the perpetrators of the most horrible crimes in the world will be brought to justice, something that is essential to make the world a safer place. However, unless the list of cognisable offenses is expanded and states from around the world can set aside their differences to genuinely work towards an enhancement of the role of the ICC, it is likely to be difficult for the ICC to really make an impact. The relationship between national jurisdictions and the ICC does present a major challenge for a court located in a far off corner of the world with resources that are not limitless. However, without the ICC, precious little could be done to force national governments to bring to trial perpetuators of terrible crimes if these national governments were prepared to shield criminals for political reasons. Now, a mechanism exists for triggering an international investigation against killers protected by the state, mass murderers, violators of internationally acceptable norms and those in power who may were not easily be held accountable. It is likely that with the passage of time jurisdiction of the ICC will be enhanced and at least a hope exists that even individuals can lodge complaints against the most powerful who were the untouchables in a society. (This page intentionally left blank) Bibliography/ References 1. Aksar, Yusuf. 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