Institutional Framework for Impunity

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A PERMANENT INTERNATIONAL CRIMINAL COURT:
IMPUNITY LOSES ANOTHER ROUND

Richard J. Wilson Professor of Law and Director International Human Rights Law Clinic American University Washington, D.C.

I. Introduction.

On the 14^th of November, the Sixth (Legal) Committee of the United Nations concluded work on a draft resolution which calls for a diplomatic conference in Italy in June 1998 to review and open for signature a convention to establish an international criminal court (ICC). In preparation for that meeting, the Committee calls for a continuation of the work of the Preparatory Committee (Prepcom), with tentative meeting dates in 1997 of February 10-21, August 1-14 and December 1-12. Another three weeks of meetings will be held before April 1998 to complete work on the draft.⁽¹⁾ At the second Prepcom, held in New York from August 12-30 of this year, it became clear that "no state is challenging outright the need for an international criminal court, nor the basic assumption that one will ultimately be created."⁽²⁾ It is expected that the Sixth Committee will take formal action on the draft resolution before the end of the year.⁽³⁾ Thus, all indications are that a permanent ICC will come into being before the millennium, perhaps becoming the last major international institution to be created in this century.

This short article will give an overview of the proposed structure and powers of the ICC, as it is now conceived, and will address some of the major disputes which must be resolved before the tribunal can come into being. Unless otherwise indicated, the analysis here draws from the draft Statute for an International Criminal Court, prepared by a working group of the International Law Commission (ILC),⁽⁴⁾ and the Report of the Preparatory Committee meeting held in New York in August of this year.⁽⁵⁾

II. Crimes Within the Jurisdiction of the ICC.

Much of the effort in the creation of an international criminal court has focused on the offenses for which it should assume jurisdiction. Historically, it was assumed that the lack of domestic enforcement capabilities for international crimes such as terrorism, narco-trafficking and related crimes required the creation of a specialized tribunal with international reach.⁽⁶⁾ In part because of the attention given to the statutes of the war crimes tribunals for the former Yugoslavia and Rwanda, now in operation, the focus of the ICC has shifted discernibly toward crimes which constitute gross violations of human rights and which often arise in armed conflict. Drawing from what are widely accepted international crimes under existing treaty law, the drafters have generally agreed on the inclusion of three groups of offenses: genocide, crimes against humanity and war crimes. There is less consensus about a second group of crimes which include aggression and an array of other crimes such as air piracy or highjacking, apartheid, drug trafficking, hostage taking, torture, or endangering the safety of UN personnel.

A. Genocide -- The definition of the crime of genocide is taken directly from articles II and III of the Genocide Convention of 1948. It includes the commission of certain acts -- killing; causing serious bodily or mental harm; destruction of means of survival; preventing births; transfer of children -- committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.

B. Crimes Against Humanity -- Although there was general agreement that crimes against humanity should be included within the ambit of the ICC's powers, there was concern that there is no generally accepted definition of crimes against humanity under treaty law. Reference was made to the Nuremberg and Tokyo Charters, the Yugoslavia and Rwanda Tribunal Statutes and the International Law Commission's draft Code of Crimes against the Peace and Security of Mankind.⁽⁷⁾ It is likely that this offense will include certain acts such as extermination, murder, torture or rape when committed systematically against a segment of the civilian population in either international or internal armed conflict.⁽⁸⁾

C. Serious Violations of the Laws and Customs Applicable in Armed Conflict (War Crimes). Again, there was general agreement that such offenses should fall within the mandate of the ICC, and only minor differences on definitions for such offenses, since much of this law is embodied in the Geneva Conventions and well-established customary international law. Nonetheless, there was some serious disagreement among the delegates as to whether this category of crimes should include violations committed in internal as well as international conflict. Some used the statute of the Rwanda tribunal, as well as the decision of the Yugoslavia Tribunal Appeals Chamber in the Tadic case⁽⁹⁾, to justify such inclusion, noting that national criminal justice systems are ill-equipped to deal with such issues. It is likely that the offenses punishable under these provisions will include torture of prisoners of war, taking civilian hostages, subjecting detainees to medical and scientific experiments, and other such offenses.

D. Aggression. Because the crime of aggression was not included in the original draft statute, and because there is no generally accepted definition for the offense, general consensus for inclusion began to break down. Some delegations, however, felt quite strongly that the absence of a crime of aggression would be a significant gap in the jurisdiction of the court, and that the crime of aggression is one of those which are of greatest concern to the international community. These delegations felt that the failure to include the offense was an invitation to impunity for individuals responsible for the crime, and that its inclusion would constitute a deterrent to such conduct. A typical definition of aggression is that found in article 15 of the draft Code of Crimes Against the Peace and Security of Mankind. That document states that aggression is committed by an individual who "as leader or organizer plans, commits or orders the commission of an act of aggression." Aggression itself is defined as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." Under the draft's definition, any unsanctioned first use of armed force constitutes prima facie evidence of an act of aggression. Typical acts constituting aggression would be invasion, bombardment, blockade, and land, sea or air attack. The crime raises interesting issues, noted by the delegates, as to actions taken by countries in self-defense.

A more troubling potential offense is that of "threat of aggression" which the draft Code defines in article 16 as "declarations, communications, demonstrations of force or any other measures which would give good reason to the Government of a State to believe that aggression is being seriously contemplated." That offense, still on the table, implicates issues of free expression of opinion.

E. Other Crimes. As noted above, the original draft statute included a number of other treaty-based offenses relating to terrorism and drug trafficking, in part due to heavy media coverage and the concerns that domestic law was inadequate to combat the phenomena. These offenses, however, achieved little consensus for inclusion in the statute. The ILC draft had, for example, included the unlawful seizure of aircraft, as defined under a 1970 convention of the same name; hostage-taking and related crimes, as defined in the 1979 International Convention against the Taking of Hostages; and crimes defined as piracy under the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988. In addition, the draft included the offenses of apartheid and crimes against diplomatic personnel, both of which have been defined by treaty. The major concern of the delegates appeared to be that such crimes, while defined by treaty, have not been uniformly subscribed to or recognized, and their exclusion from "core crimes" of the ICC might facilitate the acceptance of jurisdiction of the Court by States that are not parties to the treaties in question. The view was also expressed that the drafters had failed to include other important treaty-based offenses such as crimes against the environment.

III. The Establishment and Structure of the Court.

Some of the most contentious issues in the drafting process are the questions of the status of the court, how it will come into being, and what its relationship will be to the United Nations. Some support the idea that the court should be an independent judicial institution, while others prefer that the court form part of the UN, either as a principal or subsidiary organ. The tribunal for the former Yugoslavia, for example, is a subsidiary organ of the UN.⁽¹⁰⁾ The methods for establishment of the court would affect its relationship to the UN. Various suggestions have been made, including an amendment to the Charter of the United Nations making the court a principal organ, such as is the case with the International Court of Justice; a resolution of the General Assembly and/or Security Council, as with the Yugoslav tribunal; or the adoption of a multilateral treaty.

As currently contemplated, the ICC will be established by means of a multilateral convention which will be opened for signature as early as 1998. This scheme comports with the recommendation of the ILC draft, and seems to provide the necessary degree of flexibility and independence sought for the court. Any party to the treaty will be eligible to participate in the workings of the court, which would function as a permanent institution. The court would have jurisdiction, according to ILC draft article 4.2, within the territory of each State party "as may be necessary for the exercise of its functions and the fulfillment of its purposes." The major issues left open by the creation of a treaty-based entity are the relationship of the body to the United Nations when conflicts develop between the two and the financing of the court, which many delegates to the Prepcom support through the regular budget of the UN.

The basic mechanisms for the court's operation have been agreed to broadly. One central question was whether the court should reflect the structure and ideology of the civil or common law traditions. At the August Prepcom, France submitted a draft statute which essentially replaced that of the ILC draft and adopted the tenets of the civil law as practiced in France. While discussion of the French proposal took up several days of the meeting, the delegates ultimately opted for a structure like that proposed by the ILC draft.⁽¹¹⁾

The court will operate with a permanent Presidency, Procuracy and Registry. The Presidency, three presiding officials to be elected from among the membership of the judges, would perform the administrative duties of the court and would rule on all pre-trial and procedural matters not undertaken by a chamber of the court. The Procuracy would investigate and prosecute all offenses within the jurisdiction of the court, while the Registry would carry out the administrative functions delegated to it by the Presidency. The Prosecutor and Deputy Prosecutor would be elected by secret ballot of a majority of the States parties, and could not be of the same nationality, while the Registrar would be elected by ballot of the court on the proposal of the Presidency.

The court itself would be made up of trial and appellate chambers. The States parties would nominate and elect 18 judges with criminal trial experience and recognized competence in international law, with the caveat that no two judges can be nationals of the same state. Six of the elected judges would sit as an appellate tribunal while the remainder would rotate in trials in panels of five, as assigned by the Presidency. In general, judges hold office for a term of nine years, and would not serve on a full-time basis unless the work load of the court justified such action. The working languages of the court would be English and French.

The Prepcom also devoted significant time and energy to the questions of how a prosecution would commence, the processes by which trial and appeal would be accomplished, and the protection of the rights of the accused to a fair trial and due process. Space does not permit the full development of these issues here, but some of the most important questions which remain to be resolved are:

* What would constitute a "trigger mechanism" for exercise of the court's jurisdiction? Should the court have jurisdiction only over offenses specifically included in its mandate or more general jurisdiction when national systems fail to prosecute? At minimum, it seems that consent would be required from both the State where the crime was committed and that in which the accused is found or is in custody;

* Who will carry out the functions of the prosecutor with regard to arrest and pre-trial custody of the accused, and how will the court and its officers gain access to witnesses and evidence deemed necessary for full and adequate preparation for trial?

* Is the accused entitled to trial in his presence or may trials be conducted in absentia? What penalties should be imposed for violation of these criminal statutes, and should they include capital punishment?

While the list of controversial topics seems to be long and potentially divisive, the drafters appear confident that action on a draft treaty can be completed within the time given, and that a permanent International Criminal Court can become a reality before the turn of the century.

1. Memorandum from William R. Pace to the NGO Coalition for an International Criminal Court, Re: Update on ICC negotiations, Nov. 14, 1996.

2. Mark Thieroff, August Preparatory Committee Tentatively Calls for a Diplomatic Conference in 1998, INT'L CRIM. CT. MONITOR, Oct. 1996, at 1,2.

3. Pace memorandum, supra, n. 1.

4. The definitive draft of the International Law Commission is that of 1 September 1994, which can be found in the official web site of the ICC, at "http://igc.apc.org/icc". An earlier draft, with commentary and an introductory note, can be found in International Legal Materials: United Nations International Law Commission: Report of the Working Group on a Draft Statute for an International Criminal Court, July 16, 1993, 33 I.L.M. 253 (1994); see also, James Crawford, Current Developments: The ILC's Draft Statute for an International Criminal Tribunal, 88 AM. J. INT'L L. 140 (1994).

5. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume I, UN General Assembly, Fifty-First Session, Supp. No.22, A/51/22, 13 September 1996, at the ICC home page.

6. See, e.g., Arlen Specter, International Crime Requires International Punishment, USA TODAY, May 1990, at 28; William N. Gianaris, The New World Order and the Need for an International Criminal Court, 16 FORDHAM INT'L L. J. 88 (1992-1993); Joel Cavicchia, The Prospects for an International Criminal Court in the 1990s, 10 DICKINSON J. INT'L L. 223 (1992). A more cautious view is taken in M. Cherif Bassiouni and Christopher L. Blakesley, The Need for an International Criminal Court in the New International World Order, 25 VAND. J. TRANSNAT. L. 151 (1992) and John W. Bridge, The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed. 1992).

7. See, United Nations: International Law Commission Report on the Draft Articles Adopted at Its Forty-Third Session, 30 I.L.M. 1554, 1584 (1991).

8. It might be noted that the Statute of the International Tribunal for the Former Yugoslavia, in its article 5 definition of crimes against humanity, fails to require systematic commission of the enumerated offenses.

9. The Coalition for International Justice, headquartered in Washington, D.C., maintains a web site called "International Criminal Tribunals: ICTY/ICTR," referring to the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. It is found at "http://www.cij.org/tribunal/". The site has complete files for all action regarding the Yugoslavian defendants.

10. See United Nations, Security Council Resolutions 808 and 827 (1993).

11. Thieroff, supra, n. .