Prof. Dr. Dr. h.c. Hans Köchler

Life Fellow, International Academy for Philosophy

Professor of Philosophy at the University of Innsbruck, Austria

President of the International Progress Organization

Global Justice or Global Revenge?

The ICC and the Politicization of International Criminal Justice

Lecture delivered at the 

World Conference for International Justice  

"United against the politicization of justice"

organized by the General Sudanese Students Union

Khartoum, Sudan, 6 April 2009

I.P.O. Online Publications

International Progress Organization, A-1010 Vienna, Kohlmarkt 4, Austria

 © International Progress Organization, 2009

Text as PDF file

  (I)

Structural flaws in the Rome Statute of the International Criminal Court

Among many sectors of international civil society the creation of the International Criminal Court (ICC) has raised hopes that, from now on, international crimes could be prosecuted in a comprehensive, credible and consistent manner, in a way completely different from the victor’s justice of post-war tribunals (such as those of Nürnberg and Tokyo after World War II) or ad hoc tribunals (namely those for the former Yugoslavia and Rwanda) created by the United Nations Security Council, the supreme executive organ of the world organization, in the years after the end of the Cold War. The idea behind the adoption of the Rome Statute of the International Criminal Court in 1998 was that the investigation and prosecution of international crimes should be taken out of a context of power politics and would be conducted on a permanent basis and by an independent (transnational) judicial entity that operates according to the principle of the separation of powers, which is the basic requirement of the rule of law. The independent position of the Prosecutor (Art. 15[1] of the Rome Statute) is absolutely crucial in that regard. With one important exception – that threatens the normative consistency of the Rome Statute as such[1] –, the Court, which has been in existence since July 2002, is meant to function not on the basis of universal, but complementary jurisdiction; this implies that it will only investigate and prosecute if the concerned sovereign states do not undertake such judicial measures on their own, or do not undertake these measures in good faith or in an adequate manner.

However, the noble idea of international criminal justice, administered by the ICC as a permanent institution, has been compromised from the outset and in two basic respects:

1. Since the Court, per se, can only exercise jurisdiction vis-à-vis citizens of states that have ratified the Rome statute or persons who are suspected of having committed crimes on the territory of those states, the Court is structurally condemned to practice selective justice, and especially so as long as major military powers (such as the United States, Russia, the People’s Republic of China, India, Israel, Turkey, and others) are not States Parties. It can only punish the weak and has to spare the powerful – a fact that will completely undermine the Court’s credibility in the eyes of the international public. There should be no illusion about it: The idea of universal justice simply makes no sense if the most powerful countries are determined to stay away from such a court.

2. This predicament is aggravated even further by two provisions in the Rome Statute that completely undermine the independence of the Court from (power) politics, domestic as well as international. Although the Court is not in any way part of the United Nations system – it is an independent entity created by intergovernmental treaty –, Arts. 13(b) and 16 of its Statute tie it to the United Nations Security Council in a manner that renders the fundamental principle of the separation of powers entirely meaningless and makes the Court vulnerable to political interference at any moment. It is to be noted that both provisions require the Council’s action under Chapter VII of the UN Charter which sets out that body’s coercive powers.[2] Art. 13(b) - in connection with the specific provisions (or, rather, omission)  of Art. 12(2)[3] – gives authority to the Security Council to refer a “situation” to the ICC in cases where the Court has no jurisdiction per se (i.e. neither on the basis of nationality nor on the basis of territoriality). This means that the Council, the supreme executive organ of the UN, can effectively create jurisdiction where it otherwise would not exist on the basis of the Rome Statute.[4] This is not only in violation of the general principle of international law according to which only states party to a treaty are bound by that treaty’s provisions[5] (a point repeatedly emphasized by the United States in its arguments against the ICC)[6] – it effectively subjects the Court’s exercise of jurisdiction to the vagaries of international power politics. Due to the voting procedure laid out in Art. 27 of the United Nations Charter, it will essentially depend upon the five veto-wielding permanent members of the Council whether the ICC will exercise jurisdiction on the territory or in regard to citizens of non-States Parties. This great power privilege unavoidably imposes upon the Court a practice of selective justice and the application of double standards. This has become more than obvious in the fact that, since the coming into force of the Rome Statute in 2002, the Council has referred only one situation to the ICC, namely that of Darfur (Sudan), but has not referred the situations of Israel (as occupying power in Palestine), Iraq, Afghanistan, Somalia, etc. where serious international crimes (war crimes, crimes against humanity) have been documented. The political (“national”) interests of any individual permanent member can effectively prevent the Council from referring a situation to the Court as they may prevent the Court from going ahead with an investigation or prosecution even in cases where the Court has genuine jurisdiction.

A special irony of the Council’s “referral authority” (i.e. its competence to create jurisdiction for the ICC where it otherwise would not exist) lies in the fact that it is bound to the political will of states that are not even parties to the Rome Statute (at the moment three permanent members out of five, first and foremost among them the United States of America) and who, with their own and their allies’ leaders and personnel being shielded from the Court’s jurisdiction, can use the Court to advance their own political agenda. This “privilege” granted to states whose leaders and personnel enjoy themselves de facto immunity from prosecution, has created a situation which reminds us of the dictum of “the fox protecting the henhouse.” Apart from this element of (super)power politics, it is to be stated that as soon as the United Nations Security Council is entrusted with judicial functions, the borderline between law and politics is blurred and “international justice” is made a function of “international power politics.” This predicament has also been proven in the case of the two ad hoc tribunals established by the Security Council in 1993 and 1994 respectively.[7]

The Rome Statute of the International Criminal Court is flawed in another basic respect, namely in relation to the principle of the separation of powers which is of fundamental importance for the rule of law and, thus, for the international legitimacy of the ICC and its acceptance by the international public. By virtue of Arts. 13(b) and 16, the Statute gives special “prosecutorial” rights to an executive body that essentially operates within political parameters and that is not organically linked to the Court, namely the United Nations Security Council. Thus, political interference is made part of the Court’s terms of reference. The privilege granted to the Security Council to refer or defer an investigation or prosecution compromises, to put it mildly, the Court’s judicial authority. It is very similar, in structural terms, to the power given, under the United Nations Charter (Art. 27[3]), to the five permanent members of the Security Council to veto any substantive (i.e. non-procedural) decision of the Council in matters of international peace and security, a provision which effectively has enabled, even encouraged, those countries to systematically violate international law, and which has allowed them to act in a climate of impunity – without fear of the consequences, even in cases of wars of aggression.[8]

Furthermore, Art. 16 of the Rome Statute authorizes the Security Council to defer an investigation or prosecution for the renewable period of one year. Again, because of the provision of Art. 27 of the UN Charter, this means that no deferral can be ordered against the will of a permanent member. As was the case in another area of (legally binding) Chapter VII resolutions, namely the Council’s sanctions policy[9] (e.g. against Iraq or Libya), all other Council members will be held hostage of a previous decision if only one permanent member objects. A case will be pending “eternally” if a particular permanent member considers this a state of affairs that is suitable to its interests. In order to bring about a deferral of a politically motivated referral, a lot of political bargaining will be required among, first and foremost, the five permanent members of the Security Council, something which does not go along with the principles of the independence and universality of justice.

It is quite obvious that the provisions of Arts. 13(b) and 16 make the Court completely dysfunctional when it comes to the establishment of its judicial authority on the basis of complementarity with domestic jurisdictions. The idea of complementary jurisdiction makes no sense if states that have a political interest in a certain case (whether in favour of investigation/prosecution or against), but are not parties to the Rome Statute, are in a position to interfere with the Court’s jurisdiction.

A further irony lies in the fact that these two provisions have been written into the Rome Statute because of the special insistence during the negotiation process by, among others, the United States, the country that has even “unsigned” the Rome Statute and has made clear, so far, that it opposes the International Criminal Court as a matter of principle and has concluded so-called Art. 98 non-extradition agreements with a large number of states, thus seriously undermining the ICC’s ability to exercise jurisdiction on the basis of the Rome Statute.[10]

(II)

Lack of basis in law for the decisions of the ICC concerning citizens of the Republic of Sudan

The structural flaws of the Rome Statute have become more than obvious in the arrest warrants issued by Pre-Trial Chamber I of the ICC against citizens of the Republic of Sudan, including the country’s President. The respective decisions of the judges are solely based on jurisdictional authority that is derived from Security Council resolution 1593 (2005) of 31 March 2005 by which the Council, acting under Chapter VII of the UN Charter, decided “to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.”[11]

In the same resolution, however, the Security Council, under operative Para. 6, has exempted officials and personnel from a “State outside Sudan [sic!] which is not a party to the Rome Statute” from the consequences of that very referral, determining that such persons “shall be subject to the exclusive jurisdiction” of that State. Apart from the double standard that the Council applies in this resolution – since the Sudan, itself a “State which is not a party to the Rome Statute,” is not included in this exemption –, the resolution is in clear and open violation of the Rome Statute of the ICC as such. Art 13(b) of the Statute, which is the basis for the Council’s authority in that regard, does in no way allow a selective referral such as the one concerning Darfur, where the Council apparently wanted to shield U.S. personnel, among others, from the Court’s jurisdiction – a political condition of the United States which obviously had to be met in order to get the resolution passed at all. The respective Article of the Rome Statute merely states that the ICC may exercise jurisdiction if “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” Nowhere does the Statute mention the possibility of a “partial” or “selective” referral, exempting certain categories of persons. There is absolutely no room for conditionally linking the authority of referral under Art. 13(b) to the authority of deferral under Art. 16 of the Rome Statute.

We have outlined the legal contradictions of that Security Council resolution, which is the only basis for the ICC’s recent action against the President of Sudan,[12] in a memorandum issued on 2 April 2005,[13] shortly after the adoption of the resolution. The main arguments are reproduced here:

Undisputedly, referral of a “situation” in which international crimes may have been committed to the Court's Prosecutor is sufficient basis [according to the Rome Statute / H.K.] for the exercise of jurisdiction by the ICC[14] – which is of particular importance in cases where the Court would otherwise have no jurisdiction on the basis of territoriality or nationality. However, it clearly follows from the wording of Art. 13 (b) of the Rome Statute that any referral of a situation by the Security Council must be made without conditions as to the categories of people to be investigated or prosecuted by the Court.

In an inadmissible way, the Security Council has tied the referral of the situation in Sudan according to Art. 13 (b) of the Rome Statute to a deferral of investigation or prosecution according to Art. 16. While the Security Council, under the Court's Statute, has the right to refer a “situation” (not individual cases) in which crimes that fall under the jurisdiction of the Court appear to have been committed to the Prosecutor of the Court, the Council has no authority to order a deferral of investigation or prosecution on a selective and at the same time preventive basis.

Art. 13(b) can simply not be interpreted in the sense of selective referral; according to that Article's wording, it is a “situation” that is being referred without any qualifications as to the groups of suspected violators. Similarly, Art. 16 cannot be construed in such a way as to grant immunity from prosecution to certain categories of people. Using Art. 16 to restrict the jurisdiction granted under Art. 13(b) – i.e. to render that Article “harmless” for a powerful non-State Party [such as the United States / H.K.], as resolution 1593 (2005) has effectively done – is an exercise in sophistry for the sake of power politics; it is an inadmissible effort by a political body, the Security Council, of exercising control over the International Criminal Court. (…)

The resolution's “recalling” of Art. 16 of the Rome Statute in the Preamble is incompatible with the decision, under operative par. 6 of that resolution, that nationals, officials or personnel from non-States Parties to the Rome Statute (e.g. the United States) “shall be subject to the exclusive jurisdiction” of their respective state. By linking the referral of a situation to a collective deferral in favour of certain categories of people, the Council, under United States pressure, has not only undermined the authority of the International Criminal Court but introduced a “policy of double standards” into the practice of international criminal justice.

In its intention, resolution 1593 (2005) resembles earlier “preventive” resolutions, namely those adopted by the Security Council in 2002 and 2003 on the “collective” deferral of investigations or prosecutions of personnel of UN peace-keeping missions from non-States Parties to the Rome Statute.[15] (…) While this particular practice has stopped in 2004 (as a result of the Iraq prison scandal), it has now been revived in another context.

It is evident that any resolution is legally invalid which contains contradictory norms; the logic of legal reasoning is no different from logic in general. The constellation is even more serious in this particular case since the resolution contravenes the very provisions of the legal instrument on which the Council’s authority is based, namely the Rome Statute (which itself appears to contain contradictory norms).[16] Furthermore, through that resolution the Council tried to arrogate special judicial powers (including prosecutorial discretion) it does not possess under the UN Charter (and it is not given under the Rome Statute either). It is to be recalled that the Council’s mandate is action “for the maintenance of international peace and security” on behalf of all United Nations member states (Art. 24[1] of the UN Charter).[17] Irrespective of what the most powerful permanent member, itself not a Party to the Rome Statute, and its allies may be intending in the present case, even the United Nations Security Council is not above the law – and the Council is definitely not the supreme judicial organ of the United Nations.

Furthermore, the “political” posturing and lobbying of the Prosecutor of the International Criminal Court in the chambers of the Security Council and at international press conferences concerning this decision against the President of Sudan is definitely not compatible with the Prosecutor’s duties under the Rome Statute and points in the direction of a – totally improper – political interpretation of his duties.[18]

In view of these well-documented circumstances it is obvious that the arrest warrant against the President of Sudan is without legal basis, and states, whether parties to the Rome Statute or not, are not obligated to implement it. Similarly, states’ obligations under the United Nations Charter do not force them to honour the warrant either since, as explained above, the Security Council resolution contains contradictory norms and is itself ultra vires. The international rule of law requires that no state or intergovernmental body, not even the United Nations Security Council, puts itself above the law.[19]

Resulting from the systemic flaw of the Rome Statute (Arts. 13[b] and 16), the politicization of international criminal justice by the supreme executive organ of the United Nations, the Security Council, may lead to a systemic failure of the International Criminal Court before it has even been able to prove its worth and credibility vis-à-vis the international community. Selectively prosecuting cases from formerly colonized countries of sub-Saharan Africa while choosing not to use prosecutorial authority in cases that affect the interests of influential States Parties – and non-States Parties – to the Rome Statute is definitely not the way to convince the international public of the worthiness of the goals pursued by the International Criminal Court.[20] The Court must demonstrate that it is able to act like a court of law and that it is not merely a political tool in the hands of the most powerful member states of the United Nations. The ICC’s only raison d’être lies in becoming an institution of universal, i.e. non-discriminatory, justice, not of victor’s justice and revenge.

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