he Bush administration’s opposition to the recently inaugurated International Criminal Court (ICC) has provoked expressions of outrage and disappointment from human rights advocates worldwide and especially shrill condemnations from European commentators. Critics claim to discern in the administration’s rejection of the court a return to American “unilateralism” and proof of the arrogant disregard of the “one remaining superpower” for the wishes of the “international community” or, at any rate, the rest of it. Such rebukes give the impression that the court enjoys a far higher degree of international support than in fact it does. The court is the creation of an international agreement: the so-called Rome Statute, which was famously — or infamously, depending on one’s point of view — “unsigned” by the Bush administration in May 2002. At this writing, 92 states out of the 192 states (including the Holy See) officially recognized by the U.N. have ratified the Rome Statute. These include the 15 current member states of the European Union. Now, the last decade has not lacked occasions for the leading European powers to demonstrate the considerable economic and political means at their disposal for securing conformity from their junior partners on matters deemed of common interest. The decision taken, under massive German pressure, in late 1991 to recognize Croatian and Slovenian statehood represented a watershed in this regard. Even leaving aside such informal mechanisms, however, the Treaty of European Union by its article 19 binds member states to “coordinate their action in international organizations and at international conferences” and to “uphold the common positions in such fora.” This is not to say, of course, that the process of reaching a “common position” is always an easy one or always succeeds. The Iraq crisis has made this abundantly clear. Indeed, as will be seen below, the ICC project also provoked substantial divisions at the interior of the EU even though the protagonists chose at the time to remain discreet. Nonetheless, EU member states are precisely supposed to act as a bloc in matters pertaining to foreign policy and security. As regards the International Criminal Court, in the end they did.
Of the remaining 77 ratifying states, 11 are candidates for accession to the EU. Such countries are, if anything, even more susceptible to informal pressures than the existing EU member states, as for them it is EU membership itself that could hang in the balance. Thus, the European parliament passed a resolution calling on all candidate countries to ratify the statute and, furthermore, declaring any bilateral agreements that might affect its implementation to be “incompatible” with EU membership.
Another three of the ratifying states — Macedonia, Bosnia, and the newly re-baptized “Serbia and Montenegro” — are successor states to the former Yugoslavia that, although not yet officially candidates for EU accession, are already subject in varying degrees to EU supervision if not outright control. Bosnia, to take only the most extreme case, is currently ruled, for all intents and purposes, by a “High Representative” who is, in effect, appointed by the EU and who, since Paddy Ashdown’s assumption of the post in May 2002, is now also the EU’s “Special Representative” to the country. EU officials never tire of repeating that it is the “destiny” of all these countries someday to join the European Union.
If one adds Albania — which ratified the statute on the very day last January that it officially opened negotiations on a “Stabilization and Association Agreement” with the EU — this gives altogether 29 ratifying states that are either current or prospective members of the EU. Thus, of the remaining 153 generally recognized states in the world, only 63 have up to now ratified the Rome Statute. These latter notably feature some of the world’s smallest countries: San Marino, whose 27,000 inhabitants rank it as the third smallest state in Europe (after the Holy See and Monaco), and Nauru, proudly billed in its own publicity material as “the smallest republic in the world,” with just over 12,000. Seven of the ratifiers taken together (San Marino, Nauru, Andorra, Liechtenstein, Dominica, Antigua and Barbuda, and the Marshall Islands) have a population of roughly 347,000 — which is less than the population of New York’s smallest borough of Staten Island. On the side of the non-ratifiers, by contrast, one finds India, with its billion inhabitants; China, one and a quarter billion; Indonesia, 230 million; Russia, 150 million; Japan, 125 million; and, of course, the United States.
As the numbers cited suggest, the ICC is by no means a project of the “international community” to which the United States “unilaterally” has put up resistance. As it was originally conceived by the un’s International Law Commission, the ICC project aimed indeed to attract a broad consensus of the world’s states, and it initially enjoyed the vigorous support of the United States.1 This consensus-based approach was, however, derailed at the 1998 Rome Conference at which the court’s statute was finalized. In the form in which it emerged from Rome, the ICC is, more humbly and realistically, just a project of the European Union, for which the EU has succeeded in rallying support among countries that, for the most part, due either to their small size or to their extreme poverty and large external debt, cannot seriously be regarded as independent players on the world stage. Alongside the world’s smallest countries, the ratification registry also features many of its most highly indebted poor ones (Bolivia, Mali, Sierra Leone, Djibouti, etc.). Not surprisingly, on closer inspection, these turn out almost invariably to be privileged beneficiaries of European development aid. With very little to lose and significant financial reward to gain from demonstrating their political “worthiness” of EU assistance, more such countries can be expected to join the court in the future.
What the number of ratifications, even as it rises, thus ultimately proves is that in today’s international order there are many more officially recognized states than effectively sovereign countries. Indeed, Bosnia is not the only ratifier whose sovereignty is, for the moment, an out-and-out fiction. East Timor and, most bizarrely of all, Afghanistan — a state whose government was put in place by foreign powers and effectively controls, by its own devices, none of the national territory — clearly fall in the same category.
Despite the demonstrated capacity of the 15 EU member states to close ranks and save appearances at crucial junctures such as the Rome Conference, in reality not even all of them supported the ICC statute as it came to take shape in Rome. France and Germany, most notably, were persistently at odds over the court. Germany was the most strident proponent of a court with broad powers, overriding, if need be, the traditional prerogatives of national sovereignty, and it led a group of “like-minded” states that was largely responsible for taking the ICC project in this direction.2 France, on the other hand, proved to be more “like-minded” with the United States than with Germany on the matter and persistently refused various aspects of the draft proposals emanating from the German-led “like-minded” group. In the end, France agreed to the statute only after having secured the addition to it of a “transitional” article 124 that gives state parties the right to “opt out” of the jurisdiction of the court for an initial period of seven years.3 Thus, in June 2000, France at one and the same time ratified the statute of the court and declared that it did not recognize its jurisdiction over war crimes — except when alleged to have been committed by non-French citizens or on non-French territories.4
The ICC, the U.S., and the U.N.
here are good reasons for the United States to have rejected the Rome Statute, including some that have nothing to do with any special position of the United States in global politics. It is normal and understandable that American opponents of the ICC have tended to highlight the potential repercussions of the court for U.S. military personnel or their commanders. Too narrow a focus on specifically American interests has, however, created the false impression abroad — or perhaps, more precisely, been exploited to create such an impression — that American objections to the court could not also be shared by others. On the other hand, the feeble assurances offered in response by the court’s supporters, to the effect that the court “is not being created to prosecute Americans,” are so maladroit as to amount to open admissions of the court’s intended partiality and lack of independence. Whom is it being created to prosecute? Diplomacy and international law involve demonstrating the benefits and/or risks of proposed international arrangements for all potential parties and not just for some. In other words, they involve considerations of justice and fairness, not only calculations of interest.
As judged by such considerations, the failings of the Rome Statute are glaring. Its provisions flout the elementary principles of international law that have formed the express basis of the international system since the founding of the U.N. after World War ii. Most gravely, they undermine the principle that has formed the very cornerstone of the U.N. system: namely, what the U.N. Charter in its article 1.2 calls the “principle of self-determination” (or, in full, “the principle of equal rights and self-determination of peoples”). In recent years, through the exploitation of a certain ambiguity in the word “peoples,” “self-determination of peoples” has come increasingly to be associated with ethnic-national secessionist movements and has been construed to imply the “right” of every real or imagined “ethnic community” to its “own” state. In fact, the principle of “self-determination” as contained in the charter has nothing to do with this. In the context of the charter, “peoples” here refers quite simply to the citizenries of existing states — that is, those very “peoples” in whose name the charter is promulgated — and the “self-determination of peoples” to the right of the members of these citizenries collectively to govern their own affairs free of foreign interference.5
In other words, the principle of self-determination in the sense of the U.N. Charter represents a forceful reaffirmation of the sovereign prerogatives of states, dating back to the Peace of Westphalia — though, inasmuch as it invokes “peoples,” with the more modern implication that these states should be subordinate to the popular will (what is sometimes called “internal self-determination”). Just how little the promoters of the ICC care about this latter aspect can be gauged by their precipitate solicitation of the memberships of Afghanistan, East Timor, and Bosnia. The principle has as a corollary that states and therefore their citizenries cannot be bound by any international arrangements except those to which they have freely given their consent: the so-called “principle of free consent.”
In placing the U.N. Charter broadly within the Westphalian tradition, I depart from other critics of the ICC who see the erosion of the Westphalian principles as having set in already with the creation of the United Nations.6 I will suggest, on the contrary, that what David Rivkin and Lee Casey call “the assault on the Westphalian order” is just as much an assault on the classical U.N. system. This is hardly surprising in light of the fact that among states (as opposed to ngos), it is precisely Germany that has been leading this assault: a state regarded by its elites as being particularly disadvantaged by the U.N. system. Indeed, as concerns the internal structure of the organization and as compared to similarly powerful states in other respects, they are, of course, right.
The contemporary German elite’s hostility to the U.N. system mirrors the hostility displayed by an earlier generation of German leaders to another product of German military defeat: namely, the “Versailles system” and its institutional anchor, the League of Nations. Then as now, the object of this hostility was denounced by its German critics for being excessively “state-centered,” i.e., for grounding international relations on the mutual respect of sovereignty. Then as now, this focus was supposed, according to the critics, to have been made obsolete by contemporary realities and, in any case, to impinge upon some putative rights of “peoples” (here construed in opposition to, rather than as a function of, states).7 That contemporary German officials, in marked contrast to the behavior of their forbears, have proven remarkably adept at working within international institutions toward the obtaining of their goals should not blind us to the fact that these goals are inimical to the preservation of the U.N. system in its classical form. The German officials have, in effect, worked within the U.N. toward the implosion of the international system whose institutional nexus it was supposed to provide. The history of the ICC, which began as a U.N. initiative, is indeed the clearest example of this pattern.
The Rome Statute does assign a limited role to the U.N. Security Council in the functioning of the ICC: “permitting” the Security Council to refer cases to it and specifying the modalities according to which the Security Council may temporarily suspend — though not abrogate — an indictment. The ICC is not, however, a U.N. institution. Its statute merely speaks vaguely of establishing a “relationship” with the United Nations. Hence, the provisions of the statute bearing on these points amount in essence to nothing less than a challenge to the preeminence of the U.N. system in international relations. This makes it all the more curious that U.N. Secretary General Kofi Annan has served as a sort of unofficial spokesperson for the court and that the U.N. provides a link to the court on its website. Furthermore, the apparent deference of the court before the authority of the council is in fact no more than apparent. The Security Council will have to pass a special resolution in order for the court to suspend a prosecution on the council’s authority. But in order to pass a resolution of this nature, the council requires at least the forbearance of all five permanent members. If just one of them supports an indictment, it will stand. The fact that two of the permanent members are also members of the EU and one of them is France will make sufficiently clear the implications of these arrangements. Matters might, of course, have been different if the Security Council had been accorded the exclusive right to initiate indictments. In this case, the ICC would have been securely embedded within the U.N. system. But as matters in fact stand, the ICC constitutes a rival to the authority of the U.N. and thus has a destabilizing effect on existing collective security arrangements.
Of course, it is true that the classical U.N. principles have been frequently ignored, even — or indeed especially — by states supposed to be their guarantors; but that does not change the fact that these principles are well suited to serve the purpose for which they were first conceived: namely, the maintenance of international peace. To the extent that the ICC breaks with the classical U.N. principles, its activity will disturb the relations among states and their “peoples” and hence will itself pose a threat to peace. It is in this context that the equally conspicuous contempt that the Rome Statute displays for due process guarantees takes on its full significance. As will be seen, this contempt is by no means mitigated by the fact that the statute gives pro forma acknowledgment to these very same guarantees. On the contrary, it shows far greater contempt to empty a principle of its meaning than simply to ignore it. If we consider the ICC’s erosion of the classical U.N. principles, the contempt for due process written into its statute, and — last but by no means least — its mode of financing, what will become abundantly obvious is the risk it presents of being an interventionary court subordinated to the geostrategic aims of its richest and most powerful member states, whether singularly or in league. In short, the ICC’s practice threatens to be nothing other than the continuation of war by quasi- or pseudo-judicial means. Let us turn to the details.
“Universal” jurisdiction versus consent
he Rome statute is a treaty. It is a self-evident principle of the law of treaties — one explicitly confirmed by article 34 of the 1969 Vienna Convention — that treaties create no obligations per se for states that are not parties to them. Yet the Rome Statute appears to do just that by subjecting non-party states to the ICC’s jurisdiction. I say merely that it “appears” to do this because a) as noted, in principle it cannot, and b) the actual wording of the statute is at various points either ambiguous or vague and, taken as a whole, contradictory on the matter. This lack of clarity is no doubt the result of compromises made in the final draft of the text. During the preparatory work on the Rome Statute, the German government pushed for the court to be attributed a “universal” jurisdiction, i.e., extending unconditionally to crimes of the relevant sorts no matter where or by whom they are committed. At the opening of the Rome Conference, the then-German Minister of Justice Edzard Schmidt-Jortzig declared (rather imperiously, it must be remarked): “The basic German positions — the fundamental building blocks for the court — are well known and unchanged. We are committed to creating . . . a court with universal jurisdiction over the core crimes, including war crimes in internal conflicts.”8 By insisting on “universal” jurisdiction, the German proposals followed the precedent created by certain national courts — most famously, the Belgian courts, but also, though it has been less widely publicized, Germany’s own — which, in violation of both legal principle and indeed simple logic, have lately claimed for themselves a “universal jurisdiction” in matters pertaining to “crimes against humanity.”9
If one were to judge by the media coverage of the ICC or by the effusions of many of its apparently most convinced partisans, one would be led to believe that these proposals carried the day. In fact, however, matters are more complicated. The idea of “universal jurisdiction” continues to provide, as Henry Kissinger put it in Foreign Affairs (“The Pitfalls of Universal Jurisdiction,” July-August 2001), the “intellectual compass” for the court. Nonetheless, the resistance of the “non-like-minded” to this idea has also left its traces in the statute.
Thus, article 12 of the Rome Statute lays down what are referred to in its title as “Preconditions to the exercise of jurisdiction.” According to the second paragraph of article 12, unless a case has been referred to it by the U.N. Security Council, the court “may exercise its jurisdiction if” either the alleged criminal conduct occurred on the territory of a state party or the accused is a national of a state party. Contrary to what is sometimes supposed and to the provisions of a rejected draft proposal of the article, the victim’s being a national of a state party does not enable “the exercise of jurisdiction.” Now, it should be noted that as judged by its syntax, article 12.2 merely lays down sufficient conditions for the exercise of jurisdiction (“if”), not necessary ones (“only if”). So, contrary to the expectation created by its title and the contrast drawn to the case of a Security Council referral — whereby the court’s “exercise of jurisdiction” should apparently be unlimited — article 12 does not in fact explicitly limit the jurisdiction of the court either. It is hard to imagine that the negotiators of the statute were unfamiliar with the word “only” and its logical significance — especially since it is used twice in the previous article 11 precisely in order to limit the court’s temporal jurisdiction. Of course, the presence of the title should help assure that the stipulations contained in article 12.2 are, nonetheless, interpreted in the sense of necessary conditions. The absence, however, of their explicitly being formulated as such suggests an act of defiance by the partisans of “universal jurisdiction,” and the ambiguity thus created could someday be exploited.
Just a little further on in the statute, moreover, under the heading “issues of admissibility,” article 17 specifies that a case will be judged inadmissible if it is already being investigated or prosecuted by a state having jurisdiction over it unless that state is deemed unwilling or unable “genuinely” to prosecute it. It is not indicated what tests the court will apply to establish “genuineness” or the lack thereof.10 Strangely enough, no further mention is here made of the aforesaid “preconditions to the exercise of jurisdiction.” Thus, article 17 creates the impression that even non-party states, and even without Security Council approval, might be made subject to the territorial jurisdiction of the court. One might suppose that it goes without saying that the scope of the provisions contained in article 17 is, per article 12, limited to state parties. But then article 19.2 goes so far as to make provision for challenges to the court’s jurisdiction from non-party states — a bizarre detail that amounts to a tacit affirmation that the court may assert jurisdiction over cases falling in the latter’s jurisdiction after all.
It is remarkable that the court’s promoters frequently cite article 17 as evidence that the ICC is not meant to supersede national jurisdictions, but merely to be “complementary” to them. Indeed, the claim of “complementarity” is even “emphasized” in the statute’s preamble. This is in fact a classic example of the newspeak systematically employed by the ICC’s advocates and, indeed, founders. As raised by several states during the preparatory work on the statute, the demand that the court’s jurisdiction be “complementary” to national jurisdictions implied that the court should have competence in a matter only if the matter had been voluntarily referred to it by a state in whose jurisdiction it falls. The final version of the statute, by virtue of its article 17, affirms precisely the contrary: that it is for the court to decide whether it will hear a matter, even if this runs counter to the wishes of the pertinent state or states. Note too that article 17 implies that the ICC can, in effect, compel a state to open an investigation or prosecute a case even if that state’s own judicial authorities have not found there to be sufficient grounds to do so. The jurisdiction claimed for the court is, thus, superior to and not merely “complementary” with those of national courts.
One final, albeit highly technical, point needs to be made about article 12.2. Even on the narrowest possible interpretation of 12.2, it in fact sanctions a, so to say, “partial” defiance of the sovereign authority of non-party states inasmuch as it permits the court to exercise jurisdiction over acts committed on their territories so long as the accused is a national of a state party. Of course, states regularly assert jurisdiction over the acts of their citizens even if perpetrated on foreign territory. Barring any special treaty arrangement, however, such “personal” jurisdiction claimed by the “home” state does not supplant the territorial jurisdiction of the “host” state. It is simply a matter of jurisdictions which “overlap” without there being any hierarchy between them. Given, however, the content of the above-cited article 17, the provisions of the Rome Statute on this point amount, in effect, to an explicit assertion of the superiority of the ICC’s jurisdiction even as against the national jurisdictions of non-party states. In the event that a citizen of an ICC state is accused of having committed a crime of the relevant sort while on the territory of a non-party state, the ICC arrogates to itself the right to override the latter’s jurisdiction and transfer the case to its own. This might appear to be a relatively slight breach of the principle of free consent, and it is not, on first sight, obvious what practical consequences it could have. But nonetheless, a breach it is.
An interventionary court?
s there a substantial risk that ICC states will seek to impose the court’s jurisdiction on non-party states? Or are the ambiguities, lacunae, and inconsistencies here discussed merely symptomatic of the haste with which the Rome Statute was finalized? Well, if one is to take seriously the pronouncements of certain European leaders, the former possibility is more than just theoretical. At the opening of a January 2003 French-African summit in Paris, Jacques Chirac brandished the threat of ICC prosecution before the entirety of the assembled African heads of state. The perpetrators of political violence, Chirac warned — and the context makes perfectly clear that the representatives of legitimate national governments combating rebel movements were meant to be included in this category — “will have from now on to fear the judgment of the International Criminal Court, which extends its protection to all the citizens of the world.” He did not mention that France had itself largely opted out of the court’s jurisdiction and, hence, that the some 2,500 French soldiers deployed to the Ivory Coast at the time (their number has since been increased to nearly 4,000) needed, in fact, to “fear” very little from the ICC. Indeed, the immediate target of Chirac’s remarks was no doubt Laurent Gbagbo, the president of the Ivory Coast, who just weeks before had been put under pressure by Paris to accept a peace agreement bringing into the national government representatives of rebel forces who had been seeking its violent overthrow. The Ivory Coast is not party to the Rome Statute.
The Ivory Coast example is instructive. The court’s most prominent sponsors have always attached special importance to bringing internal conflicts within its brief. The above-cited remarks by Edzard Schmidt-Jortzig testify to this determination. In light of such emphasis, and given recent experience of would-be “international” criminal justice, notably in connection with the former Yugoslavia, the likeliest scenario is indeed that the court could seek to impose its jurisdiction on nonconsenting states in the context of a civil war. In this way, the menace and/or pursuit of a prosecution before the court could form part of a more general pattern of interference by ICC states in the internal affairs of non-party states.
Supposing, furthermore, a civil conflict to be provoked by an act of secession, the ICC states would have the opportunity to “internationalize” it by giving diplomatic recognition to the seceding party: as, for instance, the EU successfully internationalized the Yugoslav civil conflict of the early 1990s by giving diplomatic recognition to Slovenia and Croatia. If the seceding party then in turn joined the ICC, the court would even be able to save the appearance of legality — the “new” state would, after all, have accepted the court’s jurisdiction on “its” territory — whereas in fact it could at this point serve as a sort of judicial or pseudo-judicial instrument of war directed against the state defending its territorial integrity. Some would argue that the International Criminal Tribunal for the former Yugoslavia served just such a function. The fact that the Rome Statute denies the customary norm of international law whereby high officials of states enjoy immunity from criminal prosecution will only increase the court’s destabilizing potential in such a context.11 The remarkable vagueness of the statute’s definition of the crimes falling within its jurisdiction will give the prosecutor — a seeming “functionary of humankind,” subject to no form of democratic accountability whatsoever — ample opportunity to choose sides in any conflict.12 War being by definition a nasty business, at his or her discretion, the most banal, if no doubt regrettable, acts of war could be converted into “war crimes,” thus providing tacit legitimation to foreign military intervention at least to defend “the victims” and perhaps to apprehend the “perpetrator(s).”
An international court operating in the way described would represent the negation of the classical U.N. principles of international law. It would be a sort of rogue court. The very purpose of the classical U.N. principles, as noted above, is to secure international peace by requiring that the relations among states be founded upon the principle of consent. If one state or a group of states, however, asserts ultimate jurisdiction over acts normally falling within the territorial jurisdiction of another state — i.e., asserts a jurisdiction that is supposed to be superior to the latter — then there will obviously be no way for it or them to enforce this claim other than by recourse to force. An international court that permits such an imposition of its jurisdiction would by its very conception be, in effect, an accessory to war.
Double jeopardy at the ICC
irtually all the organizations, whether international, governmental, or nongovernmental, that have rallied to the ICC cause go to great pains to stress that the Rome Statute offers all the due process protections of the American Constitution and, more specifically, that it provides protection against double jeopardy. This is simply and obviously not so. Indeed, if the expression “double jeopardy” is understood in the ordinary sense of American law and, more generally, the common law tradition, then not only does the statute not provide protection against double jeopardy; it also positively sanctions exposing defendants to double jeopardy. Article 81 of the statute authorizes the prosecutor to appeal an acquittal, precisely what double jeopardy protection is supposed to prevent.
Presumably, when the court’s promoters say that the statute affords double jeopardy protection, what they have in mind is article 20, entitled “Ne bis in idem.” Its paragraph 3 states:
No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
The beginning of this clause apes what are true “Ne bis in idem” protections, but a true such protection, needless to say, contains no “unless.” The Latin phrase says “ne bis”: “not twice.” By qualifying the protection, article 20 in effect establishes that the court precisely may do what the article’s title suggests it is being prohibited from doing.13 Presumably, no one would like to see national courts engaged in the sorts of abuses implied by the conditions (a) and (b) stated in article 20.3, or at least no one would admit it. Since, however, it is up to the court itself to decide whether conditions (a) or (b) obtain, in fact the article does not bind the court to any due process norm whatsoever.
In any event, given the content of article 81, article 20 is a secondary matter. The latter gets invoked often by the court’s defenders in order to respond — or, more precisely, to seem to respond — to American critics who have cited the possibility of an American citizen being tried before the court for conduct for which he or she has already been acquitted in a U.S. court. The critics have argued that this would represent a violation of the protection against double jeopardy contained in the Fifth Amendment of the Constitution. In fact, however, on the currently accepted interpretation of the Fifth Amendment in the U.S. courts, the indictment of a person for conduct for which he or she has already been tried and acquitted may be permitted if the second indictment falls within a distinct jurisdiction (such as, for instance, a federal as opposed to a state court). What is strictly and unequivocally prohibited by the Fifth Amendment is the re-prosecution of an acquitted defendant on the same charge within the same jurisdiction, and this is what article 80 of the Rome Statute expressly permits.14
The purpose of a double jeopardy protection is to limit judicial authority in order to safeguard defendants from its potential — for instance, politically motivated — abuse. In light of the ICC’s interventionary vocation, the significance of the absence of such protection in the Rome Statute will be obvious. The ICC prosecutor’s power to appeal an acquittal suggests nothing so much as a court that is designed to “get convictions.” Indeed, under article 81.3.c.i, the court may even retain an acquitted defendant in detention pending appeal and “having regard to . . . the probability of success on appeal.” One can only wonder how a court that has just seen fit to acquit a defendant should then deem a prosecutor’s appeal likely of success. Such provisions recall and give practical form to the favored rhetoric of the court’s promoters, who have promised that its advent will bring about an “end to impunity.” It is at least highly questionable whether they are compatible with the presumption of innocence — another basic legal principle, incidentally, to which the Rome Statute elsewhere gives pro forma acknowledgment. The same spirit is reflected in the statute’s continual assimilation of witnesses and “victims”: an assimilation that makes sense only on the assumption that matters of fact that would normally have to be established in trial have already been established in advance. In any case, article 81 enlarges the potential for abusive prosecutions by a court whose impartiality there will be ample reason to doubt.
The ICC’s finances
t is a self-evident principle that the independence and hence impartiality of a court is only as sure as the independence of its financing. At the national or local level, adequate financing out of universal tax revenues is thus a sine qua non for an independent judiciary. None of us would put faith in the impartiality of a local or national court if it depended upon the largesse of private individuals or corporations, who, by definition, might have an interest in the outcome of particular proceedings. The only analogous safeguard available for an international court is financing from assessed mandatory contributions of state members. The International Court of Justice (ICJ) is, for example, financed in this manner out of the general U.N. budget. Whereas all state members of the ICC are required to make assessed contributions to its budget, article 116 of its statute also provides for voluntary contributions “from Governments, international organizations, individuals, corporations and other entities.” Thus, the ICC’s very statute openly invites contributions from a whole range of “entities,” any of whom could have an interest in the outcome of proceedings and some of whom, notably “Governments [sic — states are presumably what is meant]” might even have been parties to the hostilities in which the alleged crimes over which the court claims jurisdiction are supposed to have occurred. Apparently having been made aware that such a provision could provoke controversy, in September 2002 the ICC’s Assembly of State Parties passed a remarkable resolution “requesting” that all such “entities” making voluntary contributions declare that their contributions “are not intended to affect the independence of the Court.” Much in the spirit of the statute itself, verbal assurances were here offered as the equivalent of substantive protections.
In this matter, the ICC follows the bad precedent created by the ad hoc International Criminal Tribunal for the former Yugoslavia. The claim of the latter to impartiality in trying Yugoslav officials has been compromised by the fact that it accepted contributions in money and materiel not only from private foundations, but also from states that openly supported secessionist forces in their battle against the federal authority or even intervened militarily on their behalf. Interestingly, the statute of the ad hoc tribunal makes no provision for such voluntary contributions, but rather, quite correctly in this regard, lays down (in its Article 32) that the expenses of the tribunal shall be borne by the regular U.N. budget. The authors of the Rome Statute thus seem to have drawn their inspiration from a practice of the ad hoc tribunal that was, according to its own statute, illegal!15
A threat to peace
he very idea of an international criminal court may well be a dangerously utopian one to begin with. As various critics of the ICC have pointed out, courts derive whatever democratic legitimacy they may enjoy from being embedded in more comprehensive systems of government in which their powers are checked by democratically accountable institutions. In the absence, then, of a “world government,” a “world court” will necessarily be unbound from all the constraints that prevent judicial practice from degenerating into judicial tyranny. (In deference to this fact, the International Court of Justice, in marked contrast to the ICC, may only adjudicate disputes among states and, even then, only with their consent. It has no jurisdiction over persons.) A careful examination of the ICC’s statute, however, reveals that the ICC is not merely a matter of good intentions gone awry in the face of stubborn political realities. The ICC, so to say, has been made to be abused. It threatens to replace a classical international law whose purpose was to secure peace with a supposedly “new” international law whose raison d’être is war.
1 On early drafts of the statute, see J. Crawford, “The ILC’s Draft Statute for an International Criminal Court,” 88 American Journal of International Law (1994); and J. Crawford, “The ILC Adopts a Statute for an International Criminal Court,” 89 American Journal of International Law (1995).
2 David Davenport has accurately described this as a “hijacking” of the ICC project. See David Davenport, “The New Diplomacy,” Policy Review 116 (December 2002-January 2003).
3 See Kai Ambos, “Der neue Internationale Strafgerichtshof: die schwierige Balance zwischen effizienter Strafverfolgung und Realpolitik,” E+Z: Entwicklung und Zussamenarbeit (September 1998). Ambos, one of the most active promoters of the ICC in German academic circles and a member of the German delegation to the Rome conference, classifies both France and the United States among the “states skeptical of the court.”
4 France did accept the jurisdiction of the court for genocide and “crimes against humanity”: categories of crime under which its own military actions are clearly far less likely to fall.
5 This original sense of the principle as contained in the charter was then extended to cover colonial populations in the context of decolonization, though not in such a way as to make supposed “ethnicity” any more of a criterion. What was wrong about colonial empires from the point of view of the principle of self-determination was not that they included ethnically heterogeneous elements, but rather that they denied effective rights of political participation, on whatever grounds, to some part of the population subjected to their authority. On this matter and, more generally, on the post-World War ii history of “self-determination,” see John Rosenthal, “Sur un nouvel ethno-nationalisme,” Les temps modernes (February-March-April 2003).
6 See, notably, David B. Rivkin Jr. and Lee A. Casey, “The Rocky Shoals of International Law,” National Interest (Winter 2000-2001).
7 The latter criticism was made all the more intuitive by the fact that the German expression for “international law” is Völkerrecht, which, like the classical Latin expression jus gentium, translates literally as “law of peoples.”
8 Cited in Karen Raible, Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahre 1998 (Max Planck Institute for Comparative Public Law and International Law), consultable at http://www.mpiv-hd.mpg.de/en/prax1998/epr98_.cfm#stern. See chapter I, “Völkerrechtsquellen, Grundlagen der völkerrechtlichen Beziehungen.”
9 Prosecutions of foreigners in German courts under the so-called Principle of Universal Competence or “Weltrechtsprinzip” date back to 1997 and the trial and conviction of the Bosnian Serb Novislav Djajic for alleged crimes committed in Bosnia. The practice was formalized in 2002 with the unanimous passage by the German Bundestag of legislation introducing a so-called International Criminal Code into German law. Ambos (op cit.) optimistically declares the “Weltrechtsprinzip” to be a “recognized principle of customary [international] law.” It is in fact so far from being such that the generalized application of the “Weltrechtsprinzip” by states would obviously lead to jurisdictional chaos, in the midst of which at best happenstance and at worst force would be left to decide among competing claims.
10 The statute does list three indices that the court is supposed to consider in order to “determine willingness,” but these all implicitly ascribe a lack of “genuine” intent to the states in question, and hence the reference to them is, in effect, tautological.
11 See article 27 of the statute. However appealing such a clause might appear in light of the real or perceived wickedness of various contemporary world leaders, in fact the rationale behind the existing norm prohibiting such prosecutions is both obvious and from a legal standpoint impeccable. For one state or a group of states to engage a criminal prosecution against high officials of another state amounts not only to a manifest violation of the sovereignty of the latter, but indeed to a statement of intent to disrupt its very functioning. It is tantamount to an act of war.
12 On both the vagueness of the definition of crimes in the statute and the dangers of an “independent” prosecutor, see John R. Bolton, “Courting Danger: What’s Wrong with the International Criminal Court,” National Interest (Winter 1998-1999).
13 The Washington Working Group on the International Criminal Court, a coalition of pro-ICC NGOs, distributes a chart supposed, on its own account, to “demonstrate the compatibility of the United States Constitution and the Rome Statute.” Symptomatically, under the heading “Protection Against Double Jeopardy,” this chart quotes just the principal phrase of article 20, paragraph 3 and excises the rest of the paragraph from the word “unless” onwards.
14 The lack of double jeopardy protection represents only one of the respects in which the ICC Statute is incompatible with the U.S. Constitution. For a more comprehensive treatment of the issues involved, as well as a demonstration that such incompatibility precludes U.S. participation in the ICC, see Lee A. Casey, “The Case Against the International Criminal Court,” 25 Fordham International Law Journal 840 (2002).
15 Not surprisingly in light of what we have learned concerning its ideological sponsorship of the court, official German sources spoke early on of Germany alone assuming upwards of 20 percent of the court’s budget. In 2001, Hans-Peter Kaul, at the time an official of the German Foreign Office and in the meanwhile an ICC judge, cited a figure of 22-25 percent, seemingly calibrated on the level of the United States’s assessed contribution to the U.N. budget. (See Hans-Peter Kaul, “Der Aufbau des internationalen Strafgerichtshof,” Vereinte Nationen, December 2001.) In what amounted to an admission that it expected this financial support to translate into influence, the Foreign Office published a bulletin (reproduced in facsimile in the Kaul article) announcing that Germany would be able to “fill” a more or less commensurate portion — “around 20 percent” — of the court’s administrative positions and providing a Foreign Office contact for potential candidates. A revised version of the bulletin dated November 2003 cites a more modest figure of 11 percent, presumably referring only to Germany’s assessed contribution, and stresses that it is merely an “aim” of the Foreign Office to see that German citizens compose an equivalent portion of the court’s personnel.