Can the ICC stay free of political influence? ICC Definitely, Probably, Maybe, or Possibly Not About to Issue Bashir Warrant

Commentary from Radio Free Europe Radio Liberty
By Hans Koechler February 12, 2009
International Justice Emerges From The Shadow Of Realpolitik

Can the ICC stay free of political influence?

No state that upholds the rule of law can tolerate impunity for violations of the law. In order not to descend into anarchy, every legal system requires mechanisms of enforcement.

While the need for measures of criminal justice is not disputed at the domestic level, international law has for centuries been a domain where "national interests" reigned supreme and transgressions of even the most basic norms remained unpunished. To a considerable extent, this is still the case today.

Further Reading: Is the ICC The Right Means To Punish Crimes?
With the exception of enforcement measures adopted by the United Nations Security Council under Chapter VII of the UN Charter, states cannot be effectively sanctioned for violations of international law. In spite of their obligations under customary international law and an ever-more complex system of intergovernmental treaties they have acceded to, states may still act with impunity in the exercise of their vital interests -- simply because there is no unified system of enforcement.

The International Court of Justice (ICJ) – the "court of the United Nations" -- can only issue advisory opinions on matters that have been brought before it by member states, and it can adjudicate legal disputes only if the concerned member states request that it do so.

The climate of virtual impunity in which states are able to conduct their relations with one another stands in stark contrast to the evolving system of international criminal justice, a set of norms that define personal criminal responsibility of state officials, including heads of state and government, and military personnel for "crimes against international law" such as war crimes, crimes against humanity, genocide, and aggression.

Plans to establish a system of international criminal justice date back to the era of the League of Nations, and were only realized with the creation in 2002 of the International Criminal Court (ICC) in The Hague, the first permanent institution of its kind (and one which is often confused with the International Court of Justice in the same city.) Concerns over national sovereignty -- and in particular the "sovereign immunity" of heads of state -- blocked agreement on a worldwide criminal court for many decades.

Due to these circumstances, only leaders and soldiers of countries that have been defeated in war have been prosecuted for international crimes. It is obvious that tribunals set up by the victorious powers -- that is, by only one party to a conflict -- cannot meet basic requirements of fairness and impartiality. This was also the case with the ad hoc tribunals that were set up by the United Nations Security Council -- the supreme executive organ of the United Nations -- in connection with conflicts in Europe and Africa.

A Historic First

Because it is a political, not a judicial, body, the council's actions, including its decisions on the composition of international criminal courts, will always be dictated by the national interests of its member states, first and foremost the five veto-wielding powers.

Compared to these traditional approaches, the ICC has brought about a paradigm shift in how the most serious international crimes are prosecuted. The court is not a body of the United Nations organization, but is based on an intergovernmental treaty that was concluded in Rome in 1998 (the Rome Statute of the International Criminal Court) and -- as of July 2008 -- has been ratified by 108 states.

For the first time in the history of international criminal justice, the prosecution of serious violations of international humanitarian law is not dictated by international realpolitik, but is determined by the statute of a permanent institution. Its officials are not dependent upon national jurisdictions or the UN Security Council.

It is important to note that the court does not operate according to the controversial doctrine of "universal jurisdiction." It exercises its jurisdiction on the basis of complementarity with national jurisdictions, and will only take up cases when a state is either unable or unwilling to prosecute alleged international crimes. According to its statute, the court can investigate and prosecute crimes that have been committed either on the territory of states that have ratified the court's statute or by citizens of such states.

However, for the ICC to be successful in the long term, it will have to become more representative, and major powers will need to join, in particular the three permanent members of the Security Council that have not yet ratified the Rome Statute -- the United States, China, and Russia.

The climate of impunity will effectively be ended only after countries of their weight and influence accept the idea of a permanent court acting on the basis of complementarity. The number of ratifying states -- as impressive as it may be -- does not change the fact that, at the moment, several key countries, all with powerful militaries, are outside the court's jurisdiction and view it with suspicion.

Seeking Independence And Impartiality

As regards the court's future prospects -- and the future of international criminal justice -- a lot will depend on whether the prosecutor and judges will be able to make their decisions in full independence from political and tactical considerations and in a truly impartial manner, so that the court does not get entangled in the web of global power politics.

A special provision in the court's statute makes this task considerably more difficult than it otherwise would be. Although the court is not in any form part of the United Nations system, the Security Council, acting on the basis of Chapter VII of the UN Charter, has the right to refer situations (also in cases where the court does not have jurisdiction of its own) and to defer an investigation or prosecution for a renewable period of one year.

This proviso brings international power politics into the chambers of the court, since Security Council decisions require the consent of the five permanent members (the United States, the United Kingdom, Russia, China, and France).

The consequences of this rather strange connection between the court and the Security Council have already become visible. An investigation has been initiated into the situation in Darfur, Sudan, a country which has not acceded to the court. But no such investigation can be initiated on the situation in Gaza, a territory where, as in Sudan, the court itself has no jurisdiction. But unlike in Sudan, the Security Council cannot refer the situation because of the certain veto of at least one permanent member that is not even a party to the court.

Thus, double standards are imposed on the ICC from outside and countries that are not parties of the Rome Statute may decide whether to refer a case or defer an investigation or prosecution. The prosecutor will have to be circumspect to avoid being used for the political agendas of party states and non-party states alike. He or she would jeopardize the very legitimacy of the court by giving in to political pressures.

Notwithstanding this serious handicap -- the result of the Rome Statute drafters' concession to realpolitik -- the International Criminal Court can, if the key countries ratify the Rome Statute in the foreseeable future, effectively end the era of double standards in international criminal justice and thus contribute to a global order of peace. The deterrent effect of an end to impunity for war crimes, crimes against humanity, and genocide should not be underestimated.

Hans Koechler is a professor of philosophy at the University of Innsbruck, author of "Global Justice Or Global Revenge?" and president of the International Progress Organization. The views expressed in this commentary are the author's own and do not necessarily reflect those of RFE/RL

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Commentary from Wronging Rights blog 12 February 2009:
ICC Definitely, Probably, Maybe, or Possibly Not About to Issue Bashir Warrant

Kind of a crazy day, huh?

First the New York Times reports this morning that the Pre-Trial Chamber of the ICC has decided to go ahead and approve Chief Prosecutor Luis Moreno-Ocampo's request for a warrant for President Omar Hassan al-Bashir of Sudan. Then hours later the ICC responds with a tersely worded statement to the effect of "Nuh-uh."

This is either hella embarrassing or kind of a mean trick to play on all those media organizations chomping at the bit to bust out some portentous headlines about the first head of state to be indicted by the International Criminal Court. Michelle at Stop Genocide speculates that it might be the latter:

"[B]y leaking the information in the days before the announcement, and then issuing an obligatory denial, someone out there might be trying to soften the blow, test the waters, or at least give a warning to the international community that this is finally coming."

Word on the street (by which I mean the actual streets of the Hague, where international justice rumors flow fast and hot like so much raw sewage) suggests that this may not be far off the mark. The general consensus seems to be that the only question left unsettled is when, not whether, the arrest warrant will be issued.



*Awesome cartoon is from the Montreal Institute for Genocide and Human Rights Studies

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Sirleaf 'sorry' she backed Taylor

Liberian President Ellen Johnson-Sirleaf apologises at a truth and reconciliation commission over her backing for ex-rebel Charles Taylor. Full story: BBC 13 Feb. 2009.