Everything to Everyone: the ICC and Our Hopes for a Better World

Modern International Law is in many ways characterized by the proliferation of specialized international judicial institutions with the competence to hear cases involving allegations of violations of human rights, international crimes and issues of general public international law. All the courts have exercised a limited jurisdiction. The courts either have heard cases from or involving States that had accepted the competence of the court or the compulsory nature of the court’s authority was limited to a specific State or incident.[1] Using another rubric, the courts have been limited to deciding single types of cases, interstate disputes (general public international law),[2] human rights violations[3] or criminal cases.[4] Whether intentionally or not, the international community partially departed from this format when it created the International Criminal Court (ICC or Court). This departure has led to calls for the ICC to exert its influence and enter debates that fall outside its central mandate, the prosecution of international crimes. Specifically, there have been calls for the ICC to enter the debate about Palestinian Statehood and for the Court to act as a form of human rights review of criminal proceedings in Libya. By making these requests of the Court, international actors are asking the Court to fill perceived gaps in the international system.

The Issue of Palestinian Statehood

The ICC was created in order to “end impunity” for “the most serious crimes of concern to the international community as a whole.”[5] However, this jurisdiction was not based on concepts of universal jurisdiction,[6] the idea that international crimes can be prosecuted by any criminal court in the world regardless of who committed them, the identity of the victim or the location of the crime.[7] Jurisdiction before the Court is limited to those cases where the crime took place on the territory of a State party or the accused is a national of a State party.[8] A non-State party may also accept the jurisdiction of the Court.[9] The Rome Statute, setting up the Court, does not define the term “State” nor does it provide guidance on who determines what entities are States for the purposes of granting jurisdiction to the Court. This is a problem that the other international criminal courts never faced.[10]

The issue of Palestinian Statehood arose at the ICC due to a filing made by the Palestinian Authority in 2009 purportedly accepting the jurisdiction of the Court pursuant to Article 13 of the Rome Statute.[11] The Prosecutor of the ICC eventually decided that it did not rest with his office to decide what entities are States and which are not for the purposes of accepting the jurisdiction of the Court.[12] This decision led to some rather harsh responses challenging this interpretation and supporting the idea that the ICC is a proper forum to settle the issue.[13] The argument goes, essentially, that whether an entity is a State or not is a fact that can be judicially reviewed by the professional judges at the Court therefore there is no reason to defer the issue outside the Court.

Needless to say, if the Court were to decide that Palestine is a State there would be significant repercussions both legally and diplomatically around the world. The most obvious, from the perspective of the Court, would be that Palestine could create/delegate jurisdiction to the Court for prosecuting Israeli soldiers accused of committing crimes on Palestinian territory. There would also be political ramifications at the United Nations vis-à-vis Palestinian membership in that organization. Palestine has already been granted full-membership at UNESCO by the plenary body of that organization.[14] The membership of UNESCO and the UN are essentially the same.[15] It stands to reason then that a vote at the UN General Assembly on Palestinian membership would be a positive one. The reason this has not occurred is that UN membership is premised on a UNSC recommendation, which has not occurred.[16]

One way to look at the Palestinian request is as part of a larger quest to obtain recognition of its Statehood in face of the failure of the UN to take up the issue. There have been attempts to bring the issue to a vote at the UN, there was the UNESCO bid and then the ICC application. Of the three, the only judicial determination would be the ICC as the ICJ is not available to Palestine.[17] This is a better way to understand the Palestinian application. Considering the problems that would likely arise for the still new ICC regarding enforcement of any arrest warrants against Israeli officials, [18] the only real purpose of the application was the attempt to obtain recognition.[19]

Human Rights Review

Another distinction with other international criminal courts is that the ICC is “complimentary” to States and cannot pursue a case if it is under investigation, has been investigated and/or prosecuted at the domestic level.[20] The exception to this rule, making the case inadmissible, is when the State’s prosecution or investigation was undertaken where the State was unwilling or unable to prosecute the case.[21] These terms are defined in the Rome Statute as meaning those cases where the prosecution was undertaken to shield the accused, are subject to undue delay or the proceedings were “inconsistent with an intent to bring the person concerned to justice” and those cases where the judicial system is unable to act, respectively.[22] The long and the short of this principle is the ICC has the authority to take over a prosecution, notwithstanding a State’s ongoing investigation/prosecution where the Court determines the proceedings are inconsistent with bringing the accused to justice.[23] This provision was designed to prevent States from shielding accused from the jurisdiction of the Court, it was not envisaged as a review mechanism to ensure that States provide accused with a fair trial as such.[24] Likely in part for this reason, the Rome Statute does not supply standards or instructions for evaluating whether a State proceeding is fair, only references to situations where proceedings are designed to shield the accused.

Mr. Gaddafi after being taken into custody in Libya

Whether or not the ICC should have a human rights supervisory function has become a live issue in the admissibility challenge by Libya in the case against Saif Al-Islam Gaddafi. Members of Mr. Gaddafi’s appointed defense team in the Office of Public Counsel for the Defence have publically stated that he will not receive a fair trial in Libya.[25] Amicus in the case have filed a brief that dedicates pages, not to whether or not a trial will shield Mr. Gaddafi from the ICC, but to whether or not the judiciary is fair and free from executive interference and the balance of prosecutions of pro and anti-Gaddafi forces.[26] The arguments goes that if Libya will not afford Mr. Gaddafi a fair trial then it falls to the Court to assume jurisdiction and try him for his alleged crimes.

Any review of the human rights sufficiency of the Libyan courts at the moment would likely result in a fantastic description of dysfunction. And as has already been noted, there is no reason to believe that Mr. Gaddafi will receive a fair trial in Libya. The attractiveness of a human rights review function for the ICC is that it provides a mechanism to prevent human rights abuses. It is all the more appealing in the case of Libya because there is no other judicial institution (internal or international) that could hear such a claim.[27] However, any decision upholding the admissibility of the case would create practical problems especially in obtaining custody of the accused so that he may stand trial in The Hague.[28]

Everything to Everyone

The ICC’s deciding human rights issues is similar to the calls for the Court to decide the issue of Palestinian Statehood. Both instances involve situations where there is no other international body/court that is exercising independent review over the political decisions of the State or organization in question. Add to this the frustrated and failed attempts to reform the United Nations[29] and to force States to submit to outside human rights review.[30] The result is a sort of perfect storm encouraging those dissatisfied with the current state of the international order to view the ICC as a new opportunity to change the way the world works. Because the ICC is a new actor, and its role has not yet been defined, there is an opportunity to introduce a different way of doing things thereby modifying the status quo. Such efforts are consistent with the view, held in some parts, that the ICC was created in part to fill these gaps in enforcement due to failed attempts UN reform.[31]

Because of the current state of international relations the ICC finds itself at the intersection of many different and competing interests. Actors lacking another outlet to raise their issues turn to the ICC because it is available. However, convenient this may be, it does not address the underlying dilemma: should an international criminal court (and one that does not represent the entire international community at that) hear and resolve issues of general international law and conduct human rights reviews?

Judges at the ICC

As a matter of competence, there is no reason why the judges at the ICC could not hear cases involving and decide on issues of public international law or human rights. The bench is comprised of experts in international law and criminal law. The problem is rather another, that in deciding on such issues the Court could potentially exert its jurisdiction over cases involving non-States party thereby significantly expanding the Court’s mandate. Such an extension would be a robust assertion of authority in the face of resistance from the States involved who are against such decisions. It would also be a grand reframing of the purpose of the ICC. The Court was created to prevent impunity, not to oversee the admission of new States to the international community or to supervise State criminal justice systems to make sure they are in conformity with human rights law. These last two competencies more or less fall to the United Nations and human rights courts respectively.

None of this is to say that the Court should not weigh in on these issues. The issue of the validity of an acceptance of the ICC’s jurisdiction under Article 13 is something that it would seem natural for the Court to decide. While it is not directly asserted in the Rome Statute that a State must comply with an accused’s procedural rights, it is not 100% excluded either. The point is that should the Court decide to weigh in on these issues, which to date it has not, it should do so knowing that at this early stage of the Court’s development, going against the interests of States whose assistance is needed may not be the best move. This is doubly true considering that the text of the Rome Statute does not directly support such a supervisory role.

[1] One need think only in the first instance of the International Court of Justice (ICJ) which can only hear cases where all the parties effected have agreed to the court’s jurisdiction and are parties to the case. See on the second point, Monetary Gold Removed from Rome in 1943 Case (Italy v. France, United Kingdom and United States), judgment of 15 June 1953, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=cd&case=19&code=gold&p3=4. When it comes to courts with limited compulsory jurisdiction one need only think of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

[2] This would be the ICJ again, it is not a human rights court although it does from time to time take IHRL into account in the inter-State context.

[3] One example of this is the Inter-American Court of Human Rights.

[4] Again, one can think of the ICTY here.

[5] Preamble, Rome Statute of the International Criminal Court, 2187 UNTS 38544 (1998) (Rome Statute).

[6] See, Article 12, Rome Statute.

[7] Malcolm N. Shaw, International Law, 687 (6th ed. 2008).

[8] See, Article 12, Rome Statute. There is also the possibility of a United Nations Security Council (UNSC) referral, however, this is not a relevant factor for our purposes here.

[9] Ibid.

[10] The ICTY, International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were all created with the involvement of the UNSC. Also, both the SCSL and the Extraordinary Chambers in the Courts of Cambodia (ECCC) were created with the permission and involvement of the relevant States.

[13] One such response can be found on Prof. Schabas’ blog here, http://humanrightsdoctorate.blogspot.it/2012/04/prosecutor-and-palestine-deference-to.html.

[16] The UNSC created a committee to study the idea of Palestinian Statehood in a political move that shelved the issue for the moment.

[17] Conceivably, the General Assembly could request an advisory opinion.

[18] I discussed this previously on this blog, here, https://thenewinternationallaw.wordpress.com/2012/04/05/the-prosecutor-and-palestine/. It is also worth noting the difficulties related to enforcing arrest warrants against Sudanese officials and those related to the situation in Libya.

[19] Those who disagreed with the Prosecutor’s decision also seemed to feel that Palestine satisfies the criteria of Statehood. See, Schabas’s blog, supra.

[20] Article 17(1), Rome Statute.

[21] Ibid.

[22] Article 17(2), (3), Rome Statute.

[23] I fold all the subsection of Article 17(2) into this formulation for reasons that will become clear later on.

[24] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Prosecution responpose to Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ¶¶ 27 – 32, 42 (5 June 2012).

[26] Prosecutor v. Gaddaffi & Al-Senusi, ICC-01/11-01/11, Lawyers for Justice in Libya and Redress Trust’s Observations Pursuant to Rule 103 of the Rules and Procedure and Evidence, ¶¶ 11 – 21 (8 June 2012).

[27] Libya is a member of the African Union and the African Charter on Human and People’s Rights, but has not accepted the jurisdiction of that Court to hear individual petitions.

[28] It is well known that the Libyan Authorities do not want to hand Mr. Gaddafi over to the Court.

[29] Attempts and proposals have been around for years to reform the United Nations, especially the Security Council to make it more representative amongst other things.

[30] One can think specifically of ACtHPR, Femi Falana v. The African Union, Application No. 01/2011. It has been discussed on this blog here, https://thenewinternationallaw.wordpress.com/2012/06/30/review-of-international-tribunal-decisions-for-the-week-of-june-24-2012/.

[31] Matthias Neuner, The Security Council and the ICC: Assessing the First Ten Years of Coexistence, 18 New England Journal of International and Comparative Law 283 (2012).


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Filed under International Criminal Law, International Human Rights, Public International Law

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