by Mauro Politi and Federica Gioia (eds). Aldershot, UK: Ashgate, 2008. 192pp. Cloth. £55.00/$99.95. ISBN: 9780754674368.
Reviewed by Edward Gordon, Palo Alto, California, Honorary Vice President, International Law Association (American Branch). Email: egordon23 [at] gmail.com.
These papers, and an accompanying discussion of the issues they raise, are from the third in a series of colloquia dealing with the International Criminal Court (ICC) organized by the Faculty of Law at the University of Trento (Italy) and funded by the Italian government. All but two of the papers presented here are in English, as is the discussion.
Unlike the earlier colloquia (Politi and Nesi 2001; Politi and Nesi 2004), which were held before the ICC had become fully operational, this one, in May 2007, focused upon the difficulties the ICC is encountering in practice in balancing the ambitious objectives expressed in its constituent instrument (the “Rome Statute”) with what appears to be considerable hesitation among some state parties, as well as non-party states, in cooperating fully in its implementation.
The principal organizing theme of the Colloquium, and that of a veritable spate of other new books dealing with the ICC (e.g., Stahn and Sluiter 2009; El Zeidy 2008; Schabas 2007; Brown 2007) is complementarity – a diplomatic dilly of a term that offers the reassuring image of mutually reinforcing regimes and responsibilities, national and international, rather than a zero-sum game infought by competitive bureaucracies. Like pursuit of excellence in academic mission statements, complementarity helps bring about broad acceptance of obligations being undertaken precisely because it obscures their nature. This proved critical to gaining support when the Rome Statute was in negotiation because, despite being promoted attractively as a post-Cold War campaign to deny impunity for the commission of globally condemned crimes, the existence of a permanent international criminal court of potentially unlimited jurisdiction represents a serious challenge to jealously guarded traditions of sovereign prerogatives over crimes taking place within national territory.
The views expressed in the Colloquium tend to assort themselves according to two different mind sets. One, reflecting the attitude of speakers closest to the ICC, or most willing to accord it some latitude in starting off on its mission, holds that parties to the Rome Statute have been altogether too sluggish in carrying out their part of the bargain – that is, in assisting the ICC in its investigations of situations, developing trial-worthy evidence and apprehending the bad guys, as well as in revising their own laws to remove legal impediments to cooperation. The other, more concerned with the ICC both as a bureaucracy in itself and as a vehicle for the political will of the states that seem to be exerting undue influence in its [*130] operation, is critical both of the Rome Statute itself and of the ICC’s interpretation of it so far.
One illustrative bone of contention is the application of the Statute’s standard of gravity as a criterion for assessing the suitability for prosecution by the ICC itself of any alleged crime. Employing a numbers count, says William Schabas (Belfast) (Not all those participating in the Colloquium are identified by institutional affiliation, presumably because they were well-known to the audience), referring to using the number of innocent civilians killed as a criterion for prosecution by the ICC, only reinforces the likelihood that groups rebelling against a government are more likely to be prosecuted than are an incumbent regime’s own forces or ones loyal to it. Incidentally, Schabas, who appears to be reserving his enthusiasm for the ICC until it shows its true colors, finds his remarks here characterized by one of the Colloquium’s organizers as “uncomplimentary” to complementarity, a cute play on words that sounds like what The Wizard would say about Toto.
The ICC should learn from the Nuremberg example, says Maria Chiara Malaguti, and concern itself only with individuals who have played a major role in the commission of internationally recognizable crimes, leaving the prosecution of lesser figures to national authorities. In its initial prosecutions, for reasons of political expediency (i.e., to counter complaints that it was moving too slowly), the ICC seemed to ditch gravity as a criterion in favor of earning some quick institutional credits.
Another area of dispute is whether, or to what extent, the obligation of states to cooperate with the ICC extends to the sharing of intelligence, even when, say, a state regards such intelligence as politically sensitive and sharing it with an international agency as not in its overall best interest, or where it regards sharing intelligence gathered through national technical means as incompatible with civil rights protected under its own law. States’ apprehension along both lines is scarcely alleviated by remarks such as those of ICC Judge Hans-Peter Kaul, who not only urges member states to publicly support “the Court’s general or situational policies” – which seems to call upon states to act as unquestioning cheerleaders – but also calls upon all states, whether or not party to the Rome Statute, to “provide intelligence, satellite images, analytical support and communications.” “[J]ust imagine for a moment,” adds Judge Kaul, “how it would help the Prosecutor if US satellite images taken over Darfur would be available to him.”
That Judge Kaul nowhere refers to the interests of defendants or persons under investigation wails like a police siren to defense counsel, especially ones trained in the procedures of Anglo-American criminal law, and only serves to reinforce the impression that the ICC’s Prosecutor and judges are all but joined at the hip in attitude, zeal for prosecution and assumption of the guilt of the accused. For reasons that are themselves suspect, some of the states that dominated the drafting of the Rome Statute maneuvered to reject every effort to assure separation of the roles of accuser and judge. Its procedures contain no equivalent, for instance, to the role of grand and trial juries, and fail to provide for appeals from adverse judgment to a genuinely independent appellate body. [*131] No American trial lawyer is apt to be comfortable with the extent to which persons prosecuted by the ICC are at the mercy of a handful of people who know and work in close proximity with each other every day, whose elections, appointments and careers are intimately intertwined in institutional politics, and who consequently have little or no motivation to upset one another. It is the continental European model, with scant improvement of its known deficiencies, and it jars the spirit underlying, as well as the specific content of, the American Constitution’s Bill of Rights. Judging from its use in Europe and elsewhere, it all but invites abuse in pursuit of personal ambitions and political agendas.
Only two of the papers refer to defendants’ civil rights at all. An otherwise enthusiastic paper by Annalisa Ciampi does note the vagueness of references in the Rome Statute to the “human rights” of subjects of investigations and defendants. Interpretation and application of the Statute “must be consistent with internationally recognized human rights,” the Statute says, for instance, fully cognizant of the tensions between human rights and civil rights activists that precluded provision for more specific guarantees. A suspect can only be arrested “in accordance with the proper process” – ditto that. Federica Gioia’s paper asks whether prosecution is subject to any time limits, such as routinely provided for in national criminal law statutes, but omitted in the Rome Statute.
An adjacent but far more politically potent issue is raised by Theodor Meron (New York University), a judge on the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY), in his introductory remarks as moderator of the second day’s discussion. Most of the individuals prosecuted so far by the ICC have been Africans, and much of its investigatory efforts have been focused on situations in Africa. This pattern “is bound to lead to a groundswell of resentment,” Meron says (tactfully using the subjunctive). What is worse, although Meron himself diplomatically refrains from saying so, is the ICC’s insensitivity to the resentment and to the likelihood that Africans will come to see the ICC as an instrument of neo-colonial domination of African political development. Incredible, even after being raised by Judge Meron, the subject seems to have been all but ignored by the participants, at least on the record.
What are the ICC’s European members and academic constituencies thinking, for heaven’s sake? Can they really be oblivious to how quintessentially European an institution they have created? Not only are the Court’s procedures mere replicas of continental European models; not only is the ICC physically located in Europe, indeed in the very city (The Hague) that symbolizes the international law prevalent during the heyday of colonialism; not only, at least at the time of the Colloquium, were a disproportionate number of the ICC judges themselves European nationals; but on top of everything else, for no more profound a reason than bureaucratic expediency the ICC spent its first years focusing almost exclusively on situations in Africa. Gilbert and Sullivan, anyone? [*132]
Some of the papers address sources other than the ICC’s own initiatives from which its prosecutions may emanate. Member states are authorized to refer crimes to the Prosecutor, but in so doing are they not virtually certain to favor their own armed forces and incumbent officials over others? The UN Security Council is authorized by the Rome Statute to refer situations to the ICC, too. But is the Security Council’s political role – i.e., its responsibility under the UN Charter to maintain international peace and security – altogether compatible with the detachment from politics normally hoped for in criminal investigations and prosecutions? And, given the Security Council’s clout, is its involvement in the ICC’s investigations and prosecutions really consistent with complementarity and, for that matter, with the UN Charter’s prohibition of UN interference in matters essentially within the domestic jurisdiction of states? Finally, since even without authority from the Rome Statute the Security Council can establish ad hoc tribunals to deal with specific situations – and, as noted, has already done so – in what circumstances should it favor one approach over the other? Although alluded to, these more or less fundamental questions get short shrift in the Colloquium.
Of greater interest to participants, it seems, is to what extent the willingness or ability of local authorities to investigate a situation and proceed to prosecution should weigh in the ICC’s own determination to do so – the buzz words here being substantial collapse or unavailability of a state’s own criminal justice system. What weight should be given to the existence of an ongoing civil insurrection, say, or periodic interruptions to civil order? Under what circumstances should the prospect that its investigations or prosecutions will exacerbate existing political instability, and result in more crime and more victims, outweigh the ICC’s goal of eliminating expectations of impunity for crimes?
Not discussed, though, is why prosecutors, or any specialized UN agency, should be accorded discretion to make these political judgments in the first place. The issue arises less severely when the Security Council establishes ad hoc tribunals, such as the ones for the former Yugoslavia and Rwanda, for, in these cases, as with the Nuremberg prosecutions, the most critical political determinations are made by political bodies, not left to prosecutors.
Listening to the Colloquium with one’s proverbial third ear, it is not difficult to sense that a rivalry is developing beyond the one anticipated from the outset between the ICC and national criminal justice bureaucracies – that is, one between the ICC and the several ad hoc international criminal tribunals the UN Security Council has created. In fact, personal as well as institutional rivalries are becoming all too apparent among all extant international adjudicative tribunals, criminal and non-criminal alike. For reasons not yet fully explained, these have been springing up like weeds in the past decade or so – the currently preferred reference being to proliferation. Comments from, or enthusiastically encouraged by, members of the International Court of Justice have taken to warning ominously, for example, that proliferation threatens the authority and finality of interpretations and decisions made in the name of [*133] international law when there is only one international court, or at least one high court. Applied to too many new products, the brand name international law itself is likely to lose something of its market value. And so on.
Why proliferation – and why now? Take your pick: (1) because globalization has intensified not only the interaction of peoples across national boundaries, but personal identification with this interaction as well; (2) because the world community is no longer as tolerant as it had to remain during the Cold War of armed conflict as a justification for outrageous abuses of human rights. But then again maybe (3) because the word-concepts international law and global justice provide a marketable cover for that which, on closer analysis, looks remarkably like old-fashioned power politics, an alternative to military resources in pursuit of global political clout; or even (4) because international law, especially its humanitarian and criminal aspects, has become a cottage industry in a way that, if it involved less upstanding folks, could easily be confused with career profiteering. Didn’t someone – Galbraith? – once say that, if nothing else, economics provides full employment for economists?
Besides, even in the absence of smoking gun evidence, it is tempting to wonder if some in the international community would like nothing better than to assure that the authority to make decisions in the name of international law is dispersed among many courts, rather than monopolized by a single panel or two. Separation of the power to originate, and to compel obedience to, standards of legitimacy may not be entirely unintended, after all, or, even it is, be entirely unwelcome.
Brown, Chester. 2007. A COMMON LAW OF INTERNATIONAL ADJUDICATION. Oxford: Oxford University Press.
Politi, Mauro, and Giuseppe Nesi (eds). 2001. THE ROME STATUTE OF THE CRIMINAL COURT – A CHALLENGE TO IMPUNITY. Aldershot: Ashgate.
Politi, Mauro, and Giuseppe Nesi (eds). 2004. THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION. Aldershot: Ashgate.
Schabas, William. 2007. AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT. Cambridge: Cambridge University Press.
Stahn, Carsten, and Goran Sluiter (eds). 2009. THE EMERGING PRACTICE OF THE INTERNATIONAL CRIMINAL COURT. Leiden, The Netherlands: Martinus Nijhoff.
El Zeidy, Mohammed M. 2008. THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW. Leiden, The Netherlands: Martinus Nijhoff.
© Copyright 2009 by the author, Edward Gordon.