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The Past, Present and Future of the International Criminal Court

作者: Liu Renwen
A brief retrospect

The idea of an international tribunal to hold individuals responsible for international crimes was widely discussed after World WarⅠ. The victorious Allies established a Commission of Responsibilities of the Authors of the war and the Enforcement of Penalties to consider how to deal with accused war criminals. The Commission divided sharply on the issue of an international tribunal with the majority recommending the creation of an international "high Tribunal" to try individuals accused of "violations of the laws and customs of war and the laws of humanity." The Versailles Treaty was signed the month after the Commission's report. Article 227 provided for the creation of an international tribunal to try the Kaiser "for a supreme offence against international morality and the sanctity of treatises for other accused war criminals, the Treaty opted for trial by military tribunals of the individual Allied countries and required German cooperation with those efforts. In the end, however, the tribunal for the Kaiser was never established, and Allied trials of other officials never occurred.1

The issue of dealing with war criminals was even more salient at the end of World War Ⅱ,given the scope of Nazi and Japanese atrocities. Accordingly, Nuremberg and Tokyo Tribunals were established after the Second World War.2 The judges in these tribunals rejected the defendant's argument that international law deal only with the actions of sovereign states and held that "crime against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."3 Since then, the principle of individual accountability took root. For example, the Genocide Convention of 1948 and the four Geneva Conventions of 1949 all adopted such a principle.

Although the principle of individual accountability became well established, there was no progress in creating a mechanism to enforce that principle. Hopes for a permanent international criminal court were dashed by Cold War rivalries, and proposals for such a court were shelved, left to gather dust for four decades.4

The end of the Cold War brought a dramatic increase in the number of UN peace-making operations and a world where the idea of establishing an international criminal court was more viable. In 1992, the UN General Assembly (GA) asked the ILC to return to the draft statute for an ICC. War in Bosnia-Herzegovina and Rwanda, clear violations of the Genocide and Geneva Conventions, and the establishment of two temporary ad hoc tribunals for Bosnia-Herzegovina (in 1992) and Rwanda (in 1994) strengthened the discussions for a permanent court.5 In 1994, the ILC presented a final draft statute on the ICC to the GA and recommended that a conference of plenipotentiaries be convened to negotiate a treaty to enact the statute. The GA established an ad hoc committee on the ICC to review the draft statute. In 1995, the ad hoc committee held three 2-week meetings at UN headquarters. This December, the GA established a Preparatory Committee (PrepCom) to finalize a text to be presented at a convention of plenipotentiaries. During 1996-1998, the GA convened six PrepCom meetings to continue to draft the ICC statute. On June 15-July 17, 1998,160 countries participate in the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, Italy). On July 17, 1998 member states overwhelmingly voted in favor of the Rome Statute for the ICC6 . In the months since, 94 countries have indicated intent to ratify by signing the treaty, and 7 countries have ratified as of Feb, 16, 2000.7 The court will be set up once 60 nations have ratified the Rome Statute8 . Once established, it will have the jurisdiction over genocide, crimes against humanity and serious war crimes in situations where there is not a national judicial system available.

The main contents and problems of the Rome Statute

1. The Court's Subject Matter Jurisdiction

According to the Article 5 of the treaty, the Court will have very narrow subject matter jurisdiction, limited to "the most serious crimes of international concern": genocide, crimes against humanity and war crimes, the so-called "core crimes".9

High thresholds and definitions that in some cases are narrower than existing international law will further limit the Court.

Genocide: The definition of genocide was not controversial and was taken from the 1948 Genocide Convention. The essence of this most horrific of crimes is the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." (Article 6)

Crimes against Humanity: A major achievement of the Rome Conference was the codification in a multilateral treaty, for the first time since the Nuremberg Charter, of crimes against humanity (Article 7). For purposes of the Court's jurisdiction, a crime against humanity is an inhumane act, such as murder, torture or rape, when committed against a civilian population pursuant to a state or organizational policy. It must be part of "a course of conduct involving the multiple commissions" of inhuman acts, and the defendant must have knowledge of the overall plan. The Court will have jurisdiction without regard to whether the perpetrators are government officials and without regard to the existence of armed conflict.

The Rome Statute set a high bar to the Court's jurisdiction over crimes against humanity by the way that it defines "attack directed against any civilian population." That term only covers conduct that is "pursuant to or in furtherance of a state or organizational policy." (Article 7(2)(a)) Thus, no matter how widespread acts such as murder might be, they will not fall within the ICC's scope unless there is a showing that they were committed in the execution of a state or organizational policy. Because of this requirement, the Court's jurisdiction over crimes against humanity will not reach as broadly as customary international law,10 reflecting the drafters' intent that the Court be limited to the most serious crimes of international concern.

War Crimes: The Rome Statute gives the Court jurisdiction over war crimes committed in both international and internal armed conflicts.(Article 8(2)) The war crimes article of the Rome Statute draws from sources such as the four 1949 Geneva Conventions and other conventional and customary laws of war. Although in some cases the treaty provides narrower definitions than existing international law, the scope of the war crimes article will allow the Court to address the most serious atrocities committed in armed conflict. In particular, the inclusion of war crimes committed in civil wars was vital, because most conflicts in the modern world take place within the borders of a single nation.11

As with crimes against humanity, jurisdictional limits were attached to war crimes. First, the Court will have war crimes jurisdiction "in particular" when those crimes are "part of a plan or policy or part of a large-scale commission of such crimes." (Article 8(1)) This language presumptively restricts the Court to cases in which war crimes are either systematic or widespread, though it gives the Court the leeway to act, if circumstances dictate, even in the absence of evidence of a plan or of large-scale commission of war crimes. Second, the Court will have jurisdiction over many crimes committed in internal armed conflict only when "there is protracted armed conflict between governmental authorities and organized armed groups or between such groups." (Article 8(2)(f))

2. The Primacy of National Judicial Systems

The Court is not intended to replace functioning judicial systems. Rather, the goal is to provide an alternative to impunity where independent and effective judicial systems are not available. Thus, a fundamental principle of the Rome Statute investigate or prosecute.(Article 17)This principle ,known as "complementarity",12 can be invoked by interested states and by individuals who have been accused of crimes to block Court action.(Article 18,19)

The exceptions to the basic presumption of deferral to national systems are quite narrow. By the treaty's terms, "unwillingness" in effect requires that national proceedings be undertaken in bad faith before the ICC can step in.(Article 17(2))Thus, the use of established ,transparent judicial procedures---the norm in the military and civilian courts of established democracies governed by the rule of law precludes a finding of "unwillingness". Unwillingness is not established just because an investigation does not result in prosecution .When a State carries out its obligation to investigate, even if it decides not to prosecute, the Court will be barred from acting. "Inability" means "a total or substantial collapse or unavailability" of the national courts. (Article 17(3))This exception would apply to countries in which the judiciary has ceased in whole or substantial part to function. It would not apply to a state with a functioning judicial system, even if the system had structural flaws.

The complementarily provisions allow a state to assert the primacy of its national system with regard to individuals within its jurisdiction at the very outset of an investigation, even before individual suspects have been identified. The prosecutor must defer to the state unless he or she can bear the burden of convincing two panels of judges that the state is not willing and able genuinely to investigate and prosecute. On the one hand, this provides a safeguard against an overzealous prosecutor interfering with a functioning and independent judicial system. But it also offers authorities in less responsible states an opportunity to delay and obstruct and investigation.

3. Preconditions to the exercise of jurisdiction

Court proceedings will be "triggered" in three ways: by the Security Council acting under Chapter VII of the UN Charter ,13 by a State Party to the statue and by the Prosecutor acting on her own initiative.(Article 13) .

When the Security Council refers a "situation",14 the Court will be able to exercise its jurisdiction without regard to whether interested countries, such as the country of a suspect's nationality, have accepted the Court's jurisdiction. The authority for the Court's jurisdiction in such circumstances, like the authority of the ad hoc tribunals created by the Security Council, stems from the Security Council's plenary authority to maintain international peace and security. Thus, the Court's reach is greatest when it is given a Security Council mandate. As with any Security Council action, referrals to the Court will require the support of all five permanent members, as well as an overall majority of the Security Council. This form of triggering the Court's jurisdiction represents an institutionalization of the precedent of the ad hoc tribunals.

The Court's reach is much more limited if proceedings are triggered by a State Party referral or initiated on the Prosecutor's own motion. In those circumstances, the Court can exercise its jurisdiction only if either (a) the state on whose territory conduct in question occurred or (b) the state of nationality of the accused has accepted the Court's jurisdiction. (Article 12(2)) States accept the Court's jurisdiction by ratifying the treaty or filing an ad hoc declaration. (Article 12(1),(3))The jurisdiction of the court is thus firmly tied to the sovereign power of the states that create it. Any states has undoubted authority to adjudicate crimes committed on its territory or the conduct of its nationals. In non- Security Council cases, the Court's authority thus stems directly this underlying sovereign authority.

This sovereignty-based limitation on the Court's jurisdiction will sharply restrict its ability to deal with many situations that might otherwise involve "the most serious crimes of international concern." Many ,if not most ,of the nations on whose territory the crimes subject to the Court's jurisdiction are likely to be committed or whose nationals are likely to be responsible for such crimes will not be among the early parties to the Rome Statute. Iraq, for example, voted against the treaty and will not be likely to join, at least as long as Saddam Hussein is in power. The preconditions of territory and nationality therefore mean that for many years the ICC will be primarily a Security Council Court. And whenever the Security Council is unable to act, whether because of a permanent member's veto or because of simple lack of political will, the Court also will be unable to act.

4.Enforcement and Compliance

Effecting compliance with the Court's orders and decisions will be one of the great challenges facing those countries that ratify the Statute and comprise the Assembly of State Parties Article 86 imposes on States Parties an obligation to "cooperate fully with the court." But the court itself will have no practical means to enforce its orders and decisions. In cases initiated by the Prosecutor or pursuant to a State Party referral, the Court can refer cases of non-compliance to the Assembly of States Parties. It will then be up to the Assembly to bring pressure to bear on recalcitrant states. (Article87(7) In cases where the Court is acting pursuant to a Security Council referral, the Court can turn to the Council for assistance.(Article87(7)) Under those circumstances, the Council would be able to use its plenary authority under Chapter VII.

The practical challenges of obtaining compliance will be exacerbated by the fact that the statute doesn't give the Prosecutor the authority to conduct investigations independently of national authorities. Unlike the ICTY Prosecutor's unqualified power to question individuals, collect evidence and conduct on-site investigations, the ICC Prosecutor can investigate only by means of requesting the assistance of a State Party in accordance with the Statute and "under procedures of national law"(Article93(1)). Although States Parties are required to "ensure that there are procedures available under their national law for all forms of cooperation" (Article88), the requirement of working through national procedures offers tremendous opportunity for mischief by recalcitrant governments. The Statute also gives States scope to refuse information on national security grounds (Article72) and resist cooperation "on the basis of an existing fundamental legal principle of general application" (Article 93 (3)).

Prospect

As signature and ratification proceed, many details remain to be worked out before the Court can become operational. A Preparatory Commission has been established and will work through the year 2000 in order to draft the Court's Rules of Procedure and Evidence and other documents. Among those other documents is one that specifies "Elements of Crimes" which are intended to assist the Court and Prosecutor in the interpretation and application of the definition of crimes found in Article 6, 7 and 8 of the Statute.

Even after its establishment, the court will face further questions such as the enforcement of sentences of imprisonment (e.g. where shall a sentence of imprisonment be served, shall the prisoner have the right to be paroled?15 ), the financial problem,16 etc.

There are also some other aspects we shouldn't ignore: the want of an international criminal code, the relations between the ICC and other Tribunals, 17 the need of more persuasive theories to explain the relations between sovereignty and human rights, to explain the ICC' justification and its legal grounds.

But, anyway, the ICC statute adopted in Rome provides a vital framework for international justice for future generations and represents a step, however measured, toward ending impunity for crimes of mass violence. This is really encouraging news at the turn of century. Taking account of the most countries' evident enthusiasm both in Rome and after that, and the remarkable and unbelievable development in this field in the last ten years, we have enough reasons to hold an optimistic view that ICC will not be a remote dream to our globe, and it will also be improved incrementally in practice towards a more ideal mechanism to promote the international society's peace and human rights protection.

(Human Right Short Course Paper, Nottingham University,2000)

1As an alternative to Allied trials, the Germans agreed to prosecute 45 individuals (out of 900 accused). Only twelve actually faced trial, of whom 6 were convicted, receiving little or no punishment. See Michael R. Marrus, The Nuremberg War Crimes Trial 1945-46: A Documentary History (1997), at 12.

2But Professor D.J.Harris pointed out reasonably to some extent:" The Second World War tribunals were seen as applying victor's law, with prosecutions only of persons from the defeated states. There were doubts also whether the defendants received a fair trial." See D.J,Harris, Progress and problems in establishing an international criminal court, (1993)3(1)Jnl.of Armed Conflict Law 1.

3 See Norman Dorsen and Jerry Fowler, The International Criminal Court: an important step toward effective international justice, http://www.iccnow.org/html/aclu199907.html.

4 In Oct.1946, soon after the Nuremberg Judgment, an international congress met in Paris and called for the adoption of an international criminal code prohibiting crimes against humanity and the prompt establishment of an international criminal court (ICC). In Dec.1948, while the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, it asked the international law commission (ILC) to study the possibility of establishing an ICC. During 1949-1954, the ILC did draft statutes for an ICC, but opposition from powerful states on both sides of the Cold War stymies effort. See http://www.iccnow.org/html/timeline.htm.

5 As Prof. Norman Dorsen and Mr. Jerry Fowler pointed out correctly, "The ad hoc tribunals set up to deal with the former Yugoslavia and Rwanda demonstrated the possibilities of international enforcement, but also made clear that and ad hoc approach was no substitute for a permanent court. The ad hoc tribunals had to start from scratch in hiring judges and prosecutors, drafting procedural rules, even building courtrooms. Moreover, their ad hoc nature left them open to charges of political motivation and selective justice." See Norman Dorsen and Jerry Fowler, The International Criminal Court: an important step toward effective international justice, http://www.iccnow.org/html/aclu199907.html.

6 The treaty's official title is Rome statute of the International Criminal Court, A/CONF.183/9(JULY 17, 1998). It was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court by a vote of 120 in favor to 7 against, with 21 abstentions. The text can be found at: http://www.ilcr.org.

7 The 94 Rome Statute Signatories include the UK, France, Germany, Australia, Canada, etc. The 7 ratified countries are Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana, and Norway. For more detailed information please see httip://www.iccnow.org/rome/html/ratify.html.

8This process "will take at least several years". See http://www.lchr.org/feature/50th/how.htm. In the meantime, a Preparatory Commission will be meeting to draft Rules of Procedure and Evidence and "elements of Crimes" intended to assist the Court in the interpretation and application of the definitions found in Article 6,7 and 8.

9Article 5 also provides that the Court will have jurisdiction over aggression, if the treaty is amended to define the crime and to provide for the conditions under which the Court will exercise the jurisdiction. Given deep international divisions over definitional issues and over the Security Council's role in determining whether aggression has occurred, as well as the treaty's onerous amendment requirement, the Court is not likely to be exercise jurisdiction over the crime of aggression for many years to come.

10 Customary International law provides that either widespread or systematic acts can constitute a crime against humanity, without regard to the existence of a policy to commit the acts. See Prosecutor v. Tadic, No IT-94-1-T, para.646 (May 7, 1997).

11 See K.J.Holsti, The State, War, and The State of War 25(1996). Surveying the past 480 years, Professor Holsti finds that "classical interstate wars have declined dramatically compared to previous historical periods, and constitute only about 18 percent of all wars since 1945."

12The treaty's preamble "emphasize[es] that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions." Article 1 also specifies that the Court "shall be complementary to national criminal jurisdictions."

13 Chapter VII of the UN Charter gives the Security Council plenary authority to maintain or restore international peace and security.

14The statute provides that the Security Council or a State Party can refer a "situation in which one or more of [the] crimes [within the Court's jurisdiction] appears to have been committed."(Article 13 (a),(b))

15 According Article 110, the prisoner only have the right to a reduction of sentence pursuant to the stipulated conditions, but the prisoner should has the right to parole is a widely accepted criminal principle. Maybe this is the only one example of many kinds of coordination between the general principles of criminal law and procedure and the international criminal justice.

16 e.g, the fact that the U.S. voted against the Rome Statue reminds me of a thing introduced by a Chinese friend: his two colleagues in Peking University Law School were elected to be the judge of the International Tribunal of law of and the former Yugoslavia Tribunal respectively, the first one has more economic problems than the second one since the U.S. is not a state party of it, but the second one is much better since the U.S. has a great political will to support it.

17 Considering the narrow subject matter jurisdiction, it seems to me that it's almost unavoidable to establish some ad hoc tribunals as the responses to those new international crimes.