The Long View 2002-07-05: The International Criminal Court

Partly as a matter of personality, and partly as a matter of profession, I care very much about the letter of the law. Thus I find myself very sympathetic to John's legal reading of the Rome Statue that governs the International Criminal Court. Since I am not a lawyer, I have no opinion on the technical merits of his argument.

As an interested amateur, I find this a very fascinating subject, and I wish I knew more. I do find John's characterization of the UN General Assembly convincing: most of the countries in the world owe their existence to how tiresome their more powerful neighbors found it to govern them, than any kind of natural right. If the most powerful countries leave behind ethnic nationhood for universal states, you can expect this to become less true.

The International Criminal Court



I read the Rome Statute that governs the Court, and that went into effect on July 1. It's the damnedest thing. The Court is its own little legal universe. It not only has its own criminal statutes (for genocide, crimes against humanity, war crimes, and the still to be defined crime of "aggression"), but its own rules of statutory construction, plus the the Court's structure and sources of funding. At 29,000 words in the English version, the Rome Statute is almost three times the length of the US federal Constitution, but then the US Constitution is notoriously short. Besides, the US Constitution does not cover as much ground.

The International Criminal Court is tricameral. With just 18 judges to start with, one chamber in effect operates as a grand jury, another as a trial court, and a third as a court of appeals. The Court is supposed to be funded by assessments on the states adhering to the treaty. Those states are also supposed to volunteer prison facilities for persons convicted and sentenced by the Court. The Statute seems to imply that the host country, the Kingdom of the Netherlands, will pick up the institutional expenses if no one else will. Moreover, the Statute specifically allows for donations from private persons and organizations, and even for volunteer staff. It is possible to imagine that the Court could be freed of budgetary constraints by foundations and NGOs.

The Court's Prosecutor can initiate proceedings himself, or complaints can be made by a state that is a party to the treaty, or by the UN Security Council. The key to jurisdiction is that the acts alleged to fall within the Court's purview must have happened within a party state, or the actions in question must have happened to the citizens of a paty state. The defendants can be anybody, anywhere. There are no enforcement mechanisms of any kind, but the party states are required to comply in the matter of extradition and service of process.

The parties to the Statute constitute the Assembly that oversees the court. Sixty signatories were necessary to bring the Statute into effect. Among the current signers, many of the world's middle-sized countries are represented, principally from Europe, plus Australia and New Zealand. However, none of the world's large countries have ratified the Statute, except for Brazil and Nigeria. We should remember that the count of sovereign entities in the early 21st century runs to nearly 200. Most of them have populations smaller than that of a middle-sized Asian city. In other words, most of the members of the Assembly represent "rotten boroughs."

The UN Secretary General has some administrative functions with regard to the Court. The Statute contemplates that the Assembly can meet at the UN Headquarters in New York, annually or more often if necessary. The drafters apparently contemplated that the Assembly of the Court would eventually become coincident with the UN General Assembly. (Israel has ratified the Statute, by the way, perhaps in the hope that its membership in the Court's Assembly will redress its second-class status in the UN.)

Most important changes to the Statute, including modification of its criminal law and the Court's structure, require a two-thirds majority in the Court's Assembly. In effect, the Assembly is a parliament empowered to legislate some features of international law. This would be new, if anyone takes it seriously

As for the law and the procedure of the Court, there are few points that would strike a Common Law jurist as extraordinary. In fact, with its attention to questions like burden of proof and self-incrimination, the Statute seems designed to mollify Anglo-Saxon misgivings. There are some eccentricities. For instance, double jeopardy seems to apply in full force only to decisions of the Court itself. Judgments by national courts can be reviewed by the International Court, to see whether international law was applied adequately. Moreover, the Court's Prosecutor can appeal an acquittal from the Court's trial division to its appellate division, even on matters of fact. This is only to be expected in a system without jury trials; judges in Common Law countries are far more willing to second guess other judges than they are juries.

From what I know of the subject, the Statute gives a reasonable statement of the principles of international law in the areas within its purview. To the extent there is any innovation, the Statute is fair about it; the Court's jurisdiction covers only acts committed after the Statue came into effect at the beginning of this month. Of course, as I have noted, the Statute does put international law up for grabs in a novel way.

Reading the Statute does not answer the question: what is this? The idea of a criminal court without a police force is ludicrous. The Statute makes ordinary statecraft impossible. Although the Prosecutor has some discretion about whether to bring a case or not, his discretion is defined with regard for the personal situations of the victims and the alleged perpetrators. The Statute revokes the traditional principle of sovereign immunity, but nowhere did the drafters make the tiniest acknowledgment that prosecuting heads of state and military personnel is unlike prosecuting domestic defendants. There is a provision allowing the Security Council to order the Prosecutor to defer a trial or investigation for a year, but that does not remedy the basic problem. One simply does not arrest a head of state, one negotiates with him. Failing that, one makes war on him. For the Court to do any good, it must be subordinate to some executive body capable of conducting politics and diplomacy.

The UN Security Council would serve nicely as the responsible executive, and in fact that is what the United States has been insisting on all along. Without some such mechanism, international law will be set at odds with international order. The Court and its Statute as currently constituted should be ignored to death.

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