Why I Support the International Criminal Court
Remarks at the D.C. Bar International Law Section’s Annual Luncheon to Honor Public Service in International Law
May 28, 2003
Adapted from the forthcoming article on the International Criminal Court which will be published in the Wisconsin International Law Journal.
- The Historical Imperative For An ICC
I believe that a permanent international criminal court is a natural and necessary next step in the evolution of an international humanitarian jurisprudence that has taken root in the last century to temper, and perhaps even to deter, atrocities against innocent civilians, mostly women and children, committed by governments and powerful organizations in war and peace. The twentieth century produced an expanding array of Conventions, treaties, doctrines and multilateral arrangements aimed at reducing the human carnage that accompanies armed conflict; international law broke from its sovereign boundaries to recognize the universality of repugnance for widespread crimes committed by governments against civilian populations. The focus of international law itself shifted from the sovereign rights of nations to the human rights of individuals themselves, regardless of citizenship or nationality.
The most far-reaching changes came in the creation of legal tribunals and other mechanisms in which human rights could be enforced against those—high and low—who violated them. Nuremberg was a start—a military tribunal established by the four major Allies of World War II to try the top Nazi hierarchy for war crimes and crimes against humanity. Its offspring, Control Council Law No. 10, was the basis for hundreds of follow-up trials of middle and lower level functionaries in the German war machine who victimized innocent civilians inside Germany and in Nazi occupied countries. Some called it “Victor’s Justice”, but the trials were public, basic rights to counsel and to mount a defense were accorded the accused, and overwhelming and terrifying evidence of millions of human beings sacrificed on the altar of national ambition and ethnic hatred was put before the world. A fundamental principle of enforcement was also advanced: a community of nations could proclaim that some assaults on civilians—even in wartime—were so horrendous that they constituted crimes against humanity as a whole, beyond the exclusive province of individual nations to vindicate, and within the legitimate jurisdiction of multi-national legal bodies. The United States was at the forefront of the creation and implementation of the Nuremberg tribunals and successor tribunals.
Although several countries in the aftermath of World War II tried former Nazis for war crimes under their own laws and in their own national courts, the next major development in international humanitarian law came in the form of the two ad hoc international criminal tribunals set up by the United Nations under Chapter 7 of the UN Charter in 1993 and 1994 to try the perpetrators of war crimes, violations of the Geneva Convention, crimes against humanity and genocide committed in the Bosnian and Rwandan conflicts. These courts were composed of international judges chosen by the General Assembly from its member nations. Their charters included a greatly expanded guarantee of defendants’ rights reflecting the International Political and Civil Rights Convention and the European Convention of Human Rights, both promulgated in the intervening years. Because they depended so heavily on the uneven cooperation of national governments to compel the presence of witnesses, to access needed evidence, and, most importantly, to apprehend fleeing suspects, these new Tribunals were not always able to seize and try the most prominent military and civic leaders who had engineered the worst of the war crimes: Radovan Karadzik and Ratko Mladic being most prominent still at large. Yet after almost a decade they have succeeded in bringing a broad array of malefactors to justice, including President Slobodan Milosevic of Serbia who is currently on trial for his actions in the Bosnian, Croatian and Kosovo conflicts of the 90’s. And they have taken giant steps forward in fleshing out heretofore unenforced doctrines of international law and treaty provisions with the context of actual events testified to by live victims and alleged perpetrators. They have given to history extraordinarily detailed accounts of the dark and loathsome underside of war, nationalism, jingoism, and cynical, divisive ethnic policies.
But the ad hoc tribunals can reasonably be critiqued for their selectivity and limited reach. There are at any one time more than 30 wars going on around the world and it is a fair assumption that war crimes and crimes against humanity are being committed in all of them; the tribunals are also cumbersome; costly to create and maintain, entirely new personnel, facilities, procedures must be set up for each one. The logical next step in enforcing international norms for the treatment of civilians in wartime is a permanent international court, selecting its cases on the basis of comparative gravity along the continuum of global offenses. The UN, however, has never itself contemplated undertaking such an operation, for budgetary reasons among others. Thus, the concept of such an international court, created and supported by an “assembly” of national states was a logical solution. Any state that agrees to abide by the Rome Treaty may join. To date, 89 countries have done so, the new court—the ICC—was established as of July 2002. The United States, though very active in the drafting stage and a signatory to the Court’s final form, refused to ratify the treaty and has, in the current administration, attempted to withdraw its original signature, as well as to discourage other countries from fully participating. The U.S.’s reasons, which I discuss hereafter, I find unpersuasive and our non-participation very discouraging. The ICC represents a critical step forward in the century-long journey toward holding accountable individuals who have engaged in widespread wartime and peacetime atrocities against civilians. There simply is no other game in town, and abandonment of the court effectively abandons the journey toward international norms of responsibility at a time when globalization in other domains—communications, technology, trade, even civil law—forges ahead at an accelerating pace.
- The Irrefutable Need For An ICC
Unless the international community of nations drops all pretense of holding war criminals accountable, there is no alternative to the ICC. The United Nations will not assume the responsibility; an endless series of ad hoc tribunals established as the need arises has proven too costly and inevitably would involve choices dominated by politics (why the Congo and not Chechnya?); total dependence on prosecutions by national courts in the countries where the events occurred is unrealistic for several reasons. In the aftermath of civil or multinational wars, the judicial systems of involved countries are usually decimated; judges have fled or been dispersed, facilities are non-existent. The very idea that at that juncture these countries can undertake costly, time-consuming investigations into complex wartime events and bring their own nationals to account is unrealistic. Bosnia, Sierra Leone, East Timor—all prove the point. They lack the investigators, the skilled prosecutors, the knowledgeable jurists to document or try the most heinous of crimes. The notion that victim—witnesses from areas where hostile sentiments still clash will willingly come forward to testify is delusive. In the case of the ICTY, even 5 years after the hostilities ended, witnesses to war crimes refused to swear out affidavits before local officials in Srbska Republica—the Serb region created under the Dayton Accords—and many, before they would give testimony hundreds of miles away at the Hague, required protection in the form of pseudonyms and face and voice distortions, even resettlement in a third party country. Moreover, as with ordinary domestic crimes, investigations and witness interviews are best conducted while the scent is fresh; war torn countries are rarely a venue for efficient launching of such efforts.
Even more discouraging, many of the post-war transitional governments in those countries may not be in a position politically to embark upon war crimes prosecutions, or may affirmatively wish to avoid them. Conflicts settled by diplomatic compromises often leave governments in place that are sponsored or supported by war criminals; in virtually every conflict, opposing sides commit war crimes and most governments, especially those in precarious status, do not enthusiastically go after “homeland heroes”. In the aftermath of the Bosnian Conflict, Serbia under President Milosevic was not about to prosecute its military or civic leaders; and no prosecutions emerged from the allied Republica Srbska. Not until there was a change in government in Croatia several years after the Dayton Accords did that country initiate its own prosecutions, and the Bosnian Federation still publicly admits that it does not have the resources to undertake more than a few significant war crimes investigations. Yet anyone who attended, let alone participated, in cases at the Hague such as those arising from the Srebenica massacre of 8,000 young Muslim men in a single week, in 1995, or from the prison camps of 1992 where tens of thousands of innocent civilians were held in the most degrading and inhumane conditions imaginable, or from the brothels where young Muslim women—some no more than 12 or 13—were relegated to sexual slavery, will find it extremely difficult to accept the attitude of some critics of the ICC, that these events are regrettable, but should be settled at the negotiating table by the diplomats.
Opponents of the ICC also contend that truth and reconciliation commissions, like those set up in South Africa, El Salvador, Chile and other civil war stricken countries are a preferable way to bind the wounds and reconcile residual tensions and animosities. Indeed, Nelson Mandela has said that the peaceable end of apartheid could not have been negotiated if the chief architects of the ancient regime had anticipated criminal prosecutions. Yet, it is also true that an indispensable element of the most successful truth commissions, including South Africa’s, was the ability and willingness of the government to prosecute those malfactors who did not confess to the truth commission the fullest extent of their crimes. And horrific as the crimes against humanity perpetrated during apartheid, the infrastructure of the country, including the courts, was still largely intact at the time of settlement. Situations vary from country to country; truth commissions in some countries have been largely ineffectual; in still others they have served as a complementary mechanism to the courts for asserting accountability. My own view is that the major perpetrators of war crimes are best tried in an international tribunal except in these instances, which have proven rare, where national courts can and will try them fairly and impartially. Middle and lower level functionaries who carried out some of the nefarious schemes can then, wherever possible, be left to indigenous justice mechanisms, be they truth commissions, national courts, or as in Rawanda, local tribunals—though always with minimal guarantees of fairness required before physical punishment can be invoked. I cannot, in sum, envision an international order that does not have some mechanism for fair trial and punishment of the most culpable military and civil leadership. We need a bedrock international criminal court.
- The Unpersuasive Arguments Against The ICC
The United States is the leading critic of the ICC, despite its active participation in the Court’s formulation under the Rome Statute. It has not only withdrawn from participation but is conducting an “assertive campaign (to ) convince those state parties that have joined the ICC to withdraw” including, reportedly, threats to withhold various forms of aid unless countries sign agreements that they will not hand over U.S. officials or soldiers accused of committing war crimes to the new court under any conditions. The arguments against the court raised by the U.S. spokespersons and supporters fall into two categories—philosophical and practical.
- Legitimacy Under International and U.S. Law
The philosophical arguments, though deserving of respectful consideration do not, in my view, ultimately persuade. Basically, their thrust is that compacts among states like the Rome Statute can, under international law, exert jurisdiction only over nationals of states that join; nationals from states that decline to join are beyond reach. Only UN created bodies have all-embracing jurisdiction. A variant of this argument is that it would be unconstitutional to submit U.S. citizens to the jurisdiction of a court whose judges and procedures were not supervised by our own democratically chosen leaders. This latter argument is rebutted by the fact that the U.S. has already joined dozens of multilateral treaties, compacts, agreements with sanctioning mechanisms (though admittedly not criminal punishment) to which U.S. nationals are subject.
An international body’s claim of criminal jurisdiction over nationals from states which are not parties to the compact creating the body presents deeper problems although Americans are already subject to the jurisdiction of the Yugoslav Tribunal if they commit prohibited acts within its territorial jurisdiction. In the words of one of the ICC’s most vocal critics, a former Bush and Reagan Administration official, “overall the real issue is not whether the United States ought to obey international law; it should. The question is whether the law can, or should, be enforced outside national legal systems that have generally functioned well”. Denying the ICC any legitimate jurisdiction over the nationals of the non-party states, such critics admit, would leave the court to “collapse under its own weight or be recast as an organization of states that have abdicated to each other portions of their sovereignty”.
I find these views to be at odds with existing international law and practice. No one disputes that under current international law, a national of one country who commits a crime under the law of another country on the territory of that country may be prosecuted in the courts of and under the rules of the host country. Why is it not then entirely consistent that a country may choose to delegate the prosecution and trial of the offender to a tribunal created jointly by itself and other like-minded countries? Certainly, no canon of international law would be violated in such a scenario. If Balkan or Latin American states created a regional criminal tribunal to try certain crimes committed on their national soil, would that not be legitimate? This, basically is what ICC party countries have done—agreed that in cases where they have undisputed jurisdiction either because the accused is one of their own nationals or the alleged crime was committed on their territory, they will cede jurisdiction to the international court. Throughout the world many regional courts—the Inter-American Court, the European Court of Justice—already operate on similar bases. The ICC critics dismiss too casually this fundamental tenet; nationals of one country committing crimes in another are subject to that second country’s criminal jurisdiction; no treaty or compact need be involved to assert that jurisdiction. The Rome Statute permits jurisdiction over any individual only if he/she is a national of a Party or agreeing state or if the alleged war crime has been committed within the territory of a Party or agreeing state. (Rome Statute, Article 12(2)).
Nor can non-party state jurisdiction be considered in a vacuum. The cardinal principle of the Rome Statute is one of “complimentary” to national court jurisdiction. That is, if a national of a non-party state is accused by another state or by the ICC prosecutor of a war crime, and the accused’s own state wants to investigate or try the case itself, it may interpose that request; and unless the prosecutor can demonstrate to the ICC that the objecting country is “unwilling or unable genuinely to carry out the investigation or prosecution”, the ICC proceeding will be suspended (Article 17). Moreover, after the home state has completed its processes, the ICC charge can be reinstated only if the prosecutor can show that the state’s proceedings had been a sham (Article 20). (The Security Council can also in its discretion by resolution suspend an ICC prosecution for 12 months). (Article 16).
The fact that the ultimate decision on the legitimacy of national proceedings is left to ICC judges vexes some ICC critics, but in my opinion, the careful process of the ICC would insure American control over prosecutions of American officials in all but the most extreme hypothetical case—one where not only the ICC prosecutor but a majority of ICC’s 18 judges is engaged in a “vast conspiracy” to “get the Americans” by falsely labeling their criminal justice system a fraud. In this unlikely event, the U.S. most probably would still have physical custody of their nationals and could refuse extradition. In the end, unless the United States takes the position that it will never, anywhere, allow its nationals to be tried before even a demonstrably impartial international, it has little to fear. And, if that should be its bottom-line position—one which I believe is indefensible—it would represent a major regression from international law norms and practice recognized in a majority of civilized nations, and ironically, elsewhere by the U.S. itself.
Critics also complain that U.S. nationals tried before the ICC would lose vital constitutionally guaranteed rights such as trial by jury and protection against double jeopardy, and, they add ominously, their fates will be sealed by judges and prosecutors from outlaw states whose values and notions of justice and procedural fairness we do not share. They hold out the spectre of secret witnesses, secret hearings and ex parte evidence without the right of confrontation. Common law and adversarial modes of trial and civil law inquisitorial processes cannot be reconciled, they say, and the “likely result will be a legal tower of Babel”.
Here, I do feel that my two years at the ICTY allows me to comment from experience on these contentions. First, the 90 ratifiers of the Rome statute who have voted on appointment of the ICC judges and will soon vote on the prosecutor, include no “outlaw” or rogue states; they are basically the same allies we are so assiduously courting and counting on in our war against terrorism. The 18 ICC judges elected a few months ago are, on the whole, experienced, trained jurists of high caliber chosen in a transparent, thoughtful process which went through nearly three dozen rounds over a week’s time. Several have served on the ad hoc tribunals with no suggestions of anti-American sentiment. Had the U.S. joined the ICC, we would have had a critical voice in how the court operates and who operates it. Second, the court operates by rules; those rules – in draft – are already public and contain the same or stronger guarantees of fair trial than in the ad hoc tribunals which we fully support and where we are quite happy to have the nationals of other countries tried. (Ironically, the United States government is currently attempting to deny the most basic of these rights – to counsel – to anyone the Executive designates as an “enemy combatant” even American citizens apprehended in the United States). The statutory guarantees and rules governing ICC procedures include the equivalent of a probable cause hearing, liberal pretrial discovery, a public trial in the presence of the accused, right to counsel and to confront ones accusers, privilege against self-incrimination, rights to notice of the charges, and to an interpreter in preparing the defense, right to provisional release pending trial, bars against non-probative and unreliable evidence or evidence secured in violation of human rights, proof of gulf beyond a reasonable doubt and a right to appeal. (Articles 51, 55, 64, 66 and 67; Draft Rules of Procedures and Evidence 63-75 and 119).
There is thus no realistic possibility of importation of extreme or unfamiliar notions of justice into ICC trials; indeed the commonality of the basic components of a fair trial, as incorporated in the International Convention of Political and Civil Rights and the European Convention of Human Rights is now assumed throughout the international community. Except for jury trial and the prosecutor’s right to appeal an acquittal, trial under the ICC’s proposed rules is probably more protective of the accused than in our own country (where, as we all know well over 95% of convictions are, in fact, secured by the guilty plea system).
My experience further convinces me that international court trial processes can and do work. Language differences can be frustrating, but they are dealt with. The judges I worked with from fourteen countries across the globe were fair and impartial; moreover a decade of ad hoc tribunal experience has generated practical lessons on how the ICC can make trials shorter, faster and more efficient. The Rome Statute, in particular, insures that judges with past experience in the criminal justice system will predominate in the pretrial and trial stages, an innovation that should speed proceedings. Of course, it is more difficult to conduct an international trial fairly and efficiently than one where all participants share a common legal culture. We found that out in Nuremberg and in the Hague and Rawanda. But we also found out it can be done, and, if international norms of justice are to have meaning in the most horrendous of crimes—including genocide—we must be willing to make the extra effort to make the international tribunals work.
- Pragmatic Worries—The Real Villain
Unsheathed, I think the real concern of ICC critics is that the other members of the court will gang up on the U.S. and without justification charge either low-ranking servicemen or highly placed officials with war crimes or crimes against humanity. One such critic has said, “The greatest practical danger is that a court driven by members who may resent American global preeminence could seek to restrain the use of U.S. military power through the prosecution of U.S. leaders.” Those same critics worry that “though the possibility of international prosecution has not deterred men like Milosevic and Saddam Hussein it could inhibit the democratically elected leaders of law-abiding states. The effect would be to weaken deterrence and encourage aggression”. They point with concern to the fact that the prosecutor declined to open a formal investigation of the NATO bombing of Belgrade during the Kosovo war without stating definitively that no war crimes had taken place, relying rather on grounds that investigators would not be able to secure the necessary evidence to charge high level American leaders. In my view, her semantic resolution of what appeared to many to be a patently provocative request intended to embarrass the United States cannot be construed, as some have alleged, as leaving the question of the U.S.’s complicity open. The prosecutor simply found the complaint unworthy of further attention.
A realistic appraisal of the likely risks we face in an international court does not vindicate the alarms of the critics. There are, to begin with, built in safeguards in the Rome Statute, which I have noted above are designed to curb a runaway prosecutor hell-bent on baseless investigations or prosecutions of Americans. Unless a charge is referred by a State party, the prosecutor must obtain permission from a panel of judges to begin an investigation or prosecution (Article 15), and the state whose national is involved can halt the investigation upon a showing that it will conduct its own. A majority of the whole court and the prosecutor would have to be in conspiratorial league against the U.S. for a baseless investigation to proceed. My strong feeling is that the judges elected to the ICC will have much too great a stake in the credibility of the institution to wager its legitimacy on a worthless case for vengeance sake.
But, continue the critics, even if there is no such invidious intent, the definition of war crimes and crimes against humanity are so loosely worded that broad interpretations could encompass legitimate military activities, and the U.S. would be forced in a foreign forum to defend its acts and, in the course of that defense, possibly to disclose sensitive national security information. Collateral damage to civilians that is disproportionate to the military objective is the most frequently cited example of a war crime that would expose our military strategies to international judgment. Could not the bombing by Americans of a civilian residence or workplace be the basis of a war crime allegation even though the American planners and executors were actually targeting a nearby military installation or had been operating on the basis of secret intelligence that the bombed building was in truth a front for military activities. In defending its actions, the critics say, the U.S. might have to unbare its secret strategies and information sources and even then be at the mercy of hostile decision-makers from other countries. Further, since crimes against humanity need not be tied to armed conflict, they argue, charges could even be brought against the U.S.’s civilian leaders for peace time activities allegedly occurring inside our own borders against our own citizens.
The concern cannot be dismissed as illusory. Article 8(b) (i)-(iv) does define as war crimes intentionally attacking civilians or civilian objects that are not military objectives, or intentionally launching an attack with knowledge that the attack will cause incidental loss of life or injury to civilians that is clearly excessive in relation to the direct overall military advantage anticipated. But again my experience at the ICTY convinces me that the prosecutor—a much respected and experienced veteran of Argentinian campaigns against human rights violations and corruption—will shy far from borderline cases involving fine points of military discretion. And Article 72 has extensive procedures under which an involved State may seek protection of national security information, much like the provisions in our own domestic legislation for protecting classified or top secret information during domestic trials.
Ultimately, however, there is simply no way to create a credible international court in which one country is given an absolute, unreviewable pass regardless of its actions. In fact, the U.S. has already had military strategies scrutinized and criticized in the International Court of Justice where one state may bring an action against another and request relief from the Court. The criminal and individual nature of the relief available in the ICC is the main difference. As for the “inside USA” example, we must ask ourselves: if a nation today were persecuting citizens on the scale of Germany’s persecution of the Jews in the 1930’s and 40’s, would we think it outrageous if an ICC charged its leaders with a crime against humanity. I would think not and therefore that the U.S. cannot conscientiously object if the same principle were applied to the U.S.—however remote the realistic likelihood of its application to events inside the United States.
- Legitimacy Under International and U.S. Law
There are no one hundred percent guarantees of immunity in critical foreign relations. Largely at the instigation of the United States delegates, significant safeguards were written into the Rome Statute to prevent either the prosecutor or judges misusing the courts’ processes for vindictive reasons against a State. Had the U.S. chosen to join the court, it would have enjoyed the further pretrial safeguard of nominating (and undoubtedly electing) a member of the court, participating in the nomination and election of a prosecutor. It would also have had a major role in the formulation and adoption of the court’s rules of evidence and procedures and, if it believed abuses were occurring, in initiating processes to remove the prosecutor. It could have continued its admirable contributions to the development of a growing international jurisprudence, in general applauded by scholars and commentators, that has advanced the erosion of the impunity that tyrannical leaders and irresponsible executioners had enjoyed for centuries. It is difficult to see how the remote possibility of a court completely cut adrift from its heritage and its statute and intent on wreaking revenge on the U.S. for imagined faults can be rationally balanced against the immense potential of the court for good the first appearance on the world scene of a permanent forum in which perpetrators of evil can be brought to account for this misdeeds. The U.S. actions in the past and in the present, so far as site-specific courts are concerned, attest to our deep-seated belief that such malefactors deserve trial and punishment; it is difficult, candidly unfathomable to me, to resolve the inconsistency between that tradition and the U.S.’ aggressive opposition to the new court. One can only hope that the courts own measured progress in the next several years toward a goal of efficient justice will temper the U.S. official opposition to its very existence. To my mind, the court represents an inevitable and well thought out step toward international accountability for those terrible atrocities and abuse that individual nations cannot or will not handle. Certainly, there may be some irreducible risk in the endeavor. But listen again to President Bush’s own words in his State of the Union address: “[we] will not permit the triumph of violence in the affairs of men…Our founders dedicated the country to the cause of human dignity. This conclusion leads us into the world to help the afflicted, and defend the peace, and confound the dangers of evil men.” Ironically, the President makes the case far more eloquently than I why the U.S. should be, and why I am, a supporter of the new International Criminal Court.
* Judge, International Criminal Tribunal for the Former Yugoslavia (1999–2001); Judge, United States Court of Appeals for the District of Columbia Circuit (1979–1999); Chief Judge (1986-1991); LLB Yale Law School 1951.