The International Criminal Court (ICC), which came into being on 1 July this year, promises much but will deliver nothing but disappointment to its earnest supporters in the human rights lobby, who sanguinely believe that it will enable the most egregious criminals to be prosecuted without regard for territorial constraints. The Court’s success will ultimately depend upon the integrity of its judges and prosecutors, especially, their ability to withstand politicisation of the ICC’s case list. Unfortunately, the Rome Statute has set them up to fail in this respect.
Unlike the criminal tribunals for the Former Yugoslavia and Rwanda, the ICC’s jurisdiction is complementary rather than primary. Cases will only be admissible if genuine unwillingness or incapacity to carry out a domestic investigation or prosecution is proved against the state with municipal jurisdiction. This requires the Court to consider such utterly vague criteria as the ‘independence and impartiality’ of the domestic legal system and ‘intent to bring the person to justice’, which will hopelessly politicise the Court’s role.
The diplomatic risks involved in allowing judges to determine whether the legal systems of China or Russia are impartial will be too high for Western governments, even if such transitional states eventually ratify the ICC Treaty. Powerful states will forge compromises so that only the most obvious cases of incapacity or unwillingness, such as the failed states of Somalia or Haiti, will be turned over to the Court. Don’t expect another Milosevic prosecution.
Ludicrously, the Rome Statute allows for ‘ad hoc grants’ of jurisdiction to the Court by any state to cover crimes allegedly committed on its territory, irrespective of whether the referring state is a party to the Treaty. This would facilitate cynical manipulation of the Court by pariah states, such as Iraq, which would be able to refer future crimes of the sort allegedly committed by U.S. troops during the Gulf War, without fear of its own regime becoming subject to an action before the ICC.
Given that the enforcement functions of the Court are unlikely to succeed in all but a few cases, the ICC’s only value will be its role in the incremental socialisation of states and non-state war criminals into acceptable standards of human rights conduct. The legal norms established, though reflective of states’ interests and power, may gradually reshape patterns of conduct by changing definitions of legitimate behaviour.
However, if the ICC is to be successful in reinforcing norms, it must provide consistency of outcomes, which complementary jurisdiction does not facilitate. To defer to a multitude of domestic legal systems the function of imposing sanction for crimes that are universally offensive is to create inconsistency and to vitiate international law’s socialisation function. There are as many norms of criminal responsibility as there are domestic legal systems.
Because the crimes within the ICC’s jurisdiction are universally offensive (crimes against humanity itself), they should be adjudicated at an international level, establishing consistency of criminal jurisprudence and outcomes, while crimes of lesser gravity are left for the jurisdiction at the lowest convenient level, whether it be sub-global, state, regional or local. In formulating a universal and uniform doctrine of criminal responsibility for the most serious offences of genocide, war crimes and crimes against humanity, we must have regard for the potential difficulties caused by cultural practices, philosophies and governmental arrangements that differ from the Western, liberal ‘norm’.
This is why a minimalist universal jurisdiction is preferable - minimalist not in strength (or primacy) but in the breadth of criminal circumstances covered. This is both an altruistic desire to accommodate differing legal norms and a pragmatic concern in persuading states such as the U.S., Russia and China to defer to international jurisdiction in cases where a consensus on criminality can be reached.
For example, whereas the jurisprudence of the Tribunal for the Former Yugoslavia requires a nexus between alleged crimes against humanity and armed conflict, the ICC Statute breaks this nexus, affirming that crimes against humanity may also occur during times of peace or civil strife. The criminalisation of acts committed in situations of internal disturbances such as riots or counter-terrorist activities in places like Northern Ireland or Israel and the Occupied Territories vitiates any hope of consensus on the ICC, ensuring that international justice for the more serious offences of genocide and war crimes continues to be a farce.
Finally, we should be wary of the human rights lobby’s usual assumption that any deepening of international justice systems will necessarily be positive for its cause. This ignores the fact that regimes such as that in China, which would once have rejected notions of international justice out of hand on the basis of national sovereignty, are now learning to play the game of international society, by manipulating norms and institutions to their own advantage, as China has already done adeptly in the United Nations Human Rights Commission.
The International Criminal Court will fail to protect human rights in all but a few cases of demonstrative state failure and will raise opportunities for political farce on a grand scale. These reasons, not the parroting of nineteenth century notions of national sovereignty by some conservative backbenchers, are cause for Australia to be sceptical about the ICC and should cause our policy makers to consider whether Australia could play a role in fine-tuning its Statute in order to achieve a workable system of international criminal justice.