World Court without a World State
Criminal Justice under the Dictates of Realpolitik?

Commentary on the Idea and Reality of the
International Criminal Court Ten Years after the Coming into Force of the Rome Statute

Vienna, 1 July 2012

Hans Köchler is Professor of Philosophy (with a particular focus on political philosophy) at the University of Innsbruck in Austria. From 2000 to 2002 he served as international observer, nominated by the Secretary-General of the United Nations, at the Lockerbie trial in the Netherlands. In two reports to the UN, which he wrote in this capacity, he raised fundamental questions about the politicization of international criminal justice. Köchler is the author of the book “Global Justice or Global Revenge? International Criminal Justice at the Crossroads,” which was published in English, Arabic and Turkish versions.

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Slightly abridged translation from the German original.

Original German version

Ten years after the coming into force of the Rome Statute - and nine years after the first permanent institution of international criminal justice has become operational - the International Criminal Court's record is rather sobering. Although by now 121 states have acceded to it, the Court has so far only dealt with "situations" in seven African countries, and has delivered only one judgment - against Congolese militia leader Thomas Lubanga Dyilo. (...)

At present, altogether five people are kept in the custody of the Court in The Hague, including the only person convicted so far (in first instance). Despite their diplomatic immunity, four employees of the Court, including the lawyer temporarily appointed to represent Gaddafi's son Saif al-Islam, were themselves held in investigative detention in Libya over a period of several weeks last June. They had visited the suspect, for whom the Court had issued an arrest warrant, to inform him about his legal rights.

Criminal justice between law and power politics

This rather bizarre incident – which indirectly resulted from the UN Security Council’s “referral” of the situation in Libya to the Court – has highlighted, in a most dramatic manner, the dilemma of criminal justice between the demands of law on the one hand and international power politics on the other. More than in other areas of international law, ideal and reality are wide apart.

Supposedly, the (permanent) International Criminal Court (ICC) the statute of which had been adopted in Rome in 1998 was to provide an alternative to the ad hoc jurisdiction of courts such as those established, shortly after the end of the Cold War, for the former Yugoslavia and Rwanda through binding resolutions of the Security Council. Unlike in the case of the courts created by executive fiat, the legal status of the ICC is guaranteed by a multilateral treaty. In principle, the Court was meant to operate independently of political interference. The statutory independence is indeed indispensable for its permanent acceptance and credibility in the eyes of the world. Above all, the ICC was expected to gradually do away with the perception that international affairs are governed by double standards and that only the weak - or the losers in a struggle for power - are held accountable. However, the Court's performance so far has done nothing to change this assessment. This is due to both structural (regarding the composition of the Court, i.e. the group of States Parties) as well as procedural reasons (concerning the Statute). Not surprisingly, the latter is the result of a compromise dictated by the power and national interests of the states that were involved in the negotiation process that led to the adoption of the Statute.

If the International Criminal Court ever were to provide an alternative to the often politicized and legally questionable jurisdiction of ad hoc courts, its composition – i.e. the group of States Parties – should be actually representative of the international community. This is certainly not the case yet since three out of the five permanent members of the Security Council (China, Russia and the United States) have not acceded to the Rome Statute. Other major military powers such as India, Turkey or Israel are also not States Parties. However, in the prosecution of international crimes (war crimes, genocide, crimes against humanity), the officials of the most powerful countries ought to be subjected to the jurisdiction of the Court in exactly the same way as the citizens of smaller and militarily weak states. There is no justice with duplicity. The ratification status of the Rome Statute is indeed at the roots of the Court’s “structural dilemma;” because of its limited membership the ICC can effectively do nothing about the application of double standards in the prosecution of international crimes.

Actually an ad hoc court of the Security Council?

The dilemma is further exacerbated by procedural provisions in the Statute, which establish a relationship between the United Nations Organization and the Court that is nothing short of dysfunctional and puts in jeopardy the Court’s very independence, not to speak of the normative contradictions those provisions cause within the Statute. According to Article 13(b) of the Statute, the Security Council, using its coercive powers under Chapter VII of the UN Charter, may “refer” to the Court “situations” also in states that are not parties to the Rome Statute. Furthermore, Article 16 entitles the supreme executive organ of the United Nations to “defer” an investigation or prosecution for the renewable period of one year. This does not only mean that states that are not bound by the Rome Statute in terms of international treaty law, may be subjected to the jurisdiction of the Court (Article 13[b]), but also that non-States Parties are enabled to directly interfere in the Court’s exercise of jurisdiction. The International Criminal Court is thus effectively also made an ad hoc court of the Security Council. The situation is further aggravated by the fact that – due to the veto power of the five permanent members – it is considerations of political opportunity, not of law, that determine the criteria for decisions which have a decisive impact on the further development of international criminal justice. It goes without saying that – in the context of the Security Council – political opportunity is primarily defined by the national interests of those five states each of whom may veto a decision on referral or deferral under the Rome Statute. The problem has become all too obvious in the selectivity of the Council’s referral decisions so far. While the “situations” in the non-ICC member states Sudan (Darfur) and Libya were referred to the Court, no such measure was taken by the Council concerning “situations” such as those in Syria or Gaza (Palestine) where the Court has no statutory jurisdiction either – in the case of Gaza, because the United Nations Organization has not yet recognized Palestine as a sovereign state and Israel has not ratified the Rome Statute.

Hypocrisy of great powers

The degree of hypocrisy, which the policies of great powers that have kept their distance from the Court may reach, has again become obvious in the Libyan case. As members of the Security Council, those countries are in a position to interfere with the jurisdiction of the Court, without actually being subjected to it, and thus to use it for their own purposes. Since last year’s régime change, the very states that so fiercely fought for the involvement of the International Criminal Court seem to have lost all interest in enforcing its authority in the non-treaty state Libya. In the new constellation, they rather seem to be satisfied with a procedure on the basis of the principle of complementarity according to § 1 of the Rome Statute. This provision entitles Libya to investigate and prosecute the cases taken up by the Court, but only if proper judicial conditions are ensured – which, however, is to be determined by the Court, and not by Libya. The rather weak and passive attitude of the states referred to above in the case of the four ICC officials who got arrested while on a mission to Libya also points in the direction of political opportunism. After all, those individuals had only undertaken that travel because the Security Council at first had created jurisdiction for the Court. The obvious duplicity in the behaviour of these states has contributed to a growing lack of confidence in international criminal justice. The demoralizing effect of their policies is particularly felt and visible in regions outside of Europe – especially in Africa – where the creation of the ICC received large support. Apart from Europe, Africa is the continent with the highest density of ratifications of the Rome Statute. In view of the political instrumentalization of the Court by powerful members of the Security Council, it does not come as a surprise that the African Union already decided in July 2009 to cease cooperation with the ICC in the case against the President of Sudan.

There is a further provision in the Rome Statute, which seriously restricts the Court in its exercise of jurisdiction and indirectly subjects it to political influence. The by now notorious Article 98 prevents the Court from proceeding with a request for surrender of a suspect if the country where he is residing has concluded a non-extradition treaty with a third state. The United States, for instance, has concluded – as a kind of precautionary measure – bilateral treaties for that purpose with a large number of states. Its military or economic power often had a decisive influence on the prospective treaty partners. This has made obvious again how the most powerful countries are able – and eager – to shield their citizens from the jurisdiction of the Court and to use it “from outside,” so to speak, (via the Security Council) for their own purposes. This is a case par excellence where “might makes right.”

Blind in one eye?

Both the structural and procedural factors that render the ICC susceptible to political interference have been aggravated by the conduct so far of the Prosecutor who, according to the Statute, may initiate an investigation on his own (proprio motu). The procedurally strong position of the Prosecutor under the Rome Statute – who is not exclusively dependent on referrals from States Parties – could indeed be a counterweight to the power and interest politics of both States Parties and those non-States Parties who try to instrumentalize the Court for their purposes. As far as the first step in the Court’s exercise of jurisdiction – the initiation of an investigation – is concerned, everything depends on the independence and courage of the Prosecutor who, according to the Statute, must be a person of “high moral character.” The term of Luis Moreno Ocampo, which ended after the first nine years of the Court’s operation, was characterized by a sharp discrepancy between hesitation, even inaction, on the one hand and decisive, bold prosecutorial initiatives on the other – depending on the political circumstances. While, in Ocampo’s obvious assessment, the situation in Afghanistan – that had acceded to the Court in 2003 – did not require his involvement, he acted almost with lightning speed to obtain arrest warrants against the leading political figures in Libya – a country where he had only “borrowed” jurisdiction (due to the intervention of the Security Council), but where the interests of powerful states were at stake. At the same time, and in spite of overwhelming evidence, he found no reason for prosecutorial action concerning war crimes and crimes against humanity that had allegedly been committed by the country’s tribal militias. After régime change in Libya, he was literally full of praise for the country’s judicial system, thus emboldening the new rulers in their efforts to deny the Court the prosecution of the pending cases. His prosecutorial practice – extreme caution and indecision in one instance, and anticipatory obedience in another – has made it more than obvious that what the office of Prosecutor needs most is personal integrity and independence, and an entirely non-political approach. Nothing less is required if the International Criminal Court is ever to be accepted and sustained as a permanent institution. Independence and immunity of the Court’s leading officials, guaranteed on paper, are not in any way sufficient. They are meaningless without independence of the mind. One can only hope that the newly appointed Prosecutor – Fatou Bensouda from the African nation of Gambia – will be more circumspect in the conduct of her office, and that she will be less considerate of external interests, and in particular of power politics, than her predecessor. Should she actually have the courage to make full use of her authority under Article 15(1) of the Rome Statute (her proprio motu powers), she might at least help to correct the perception, resulting from past conduct, of the International Criminal Court as a de facto regional court for Africa – as if only Africans had committed international crimes.

The system lacks legitimacy – and won’t survive in the long term

However, even the most courageous and upright prosecutor cannot do away with the structural weaknesses of the Court in its present form. The system of criminal justice embodied in the Rome Statute lacks legitimacy, and won’t survive in the long term, unless the militarily powerful – and, above all, the most powerful – states accede to the Court. These are the states whose officials and representatives are in a much stronger position to actually commit the crimes enumerated and defined in the Statute than their counterparts from the many smaller, and weaker, states that are under the Court’s jurisdiction. The system can neither be morally defended nor sustained in terms of realpolitik should, for instance, the use of nuclear arms be excluded from the Court’s jurisdiction, a “precautionary” attempt which France has made by way of an “interpretative declaration” annexed to the instrument of ratification of the Rome Statute. It is impossible to defend the idea of justice without the recognition of equality before the law. The concept of “international crimes” will lose all credibility if different standards are applied on a permanent basis. Through numerous solemn proclamations, the punishment and prevention of those crimes has been made the concern of the entire international community. There is either a consistent system of international criminal justice, free of contradictions between its basic norms, or no system at all. Tertium non datur.

The International Criminal Court must in no way perpetuate the principle of “might makes right”

Under no circumstances, either directly or indirectly, either openly or covertly, must the International Criminal Court perpetuate the principle of “might makes right.” This, however, will be the case as long as the composition of the group of States Parties remains as imbalanced in terms of power relations as it is today; and it also is the case because the Statute of the Court concedes to an external entity (that is composed, and thus acts, according to considerations of power politics) the privilege to interfere with its jurisdiction, whether by restricting or expanding it. Because of the veto, the Security Council will never “refer” a situation in a country that enjoys the protection of any of its five permanent members – not to speak of the fundamental immunity that protects the officials of those permanent members that are not States Parties to the Court (except in cases where those officials may have committed international crimes on the territory of a State Party). Instead of obfuscating the issue, one should simply admit that even in the era, and under the auspices, of the ICC the “end of impunity” has not yet been achieved. What exists is a two-class system of criminal justice where the Security Council may use “referrals” for political purposes, and in particular as “disciplinary measures” in domestic or international conflicts.

In any state that adheres to the rule of law, the exercise of judicial power must be strictly separate from the exercise of the state’s other powers, and judicial authority vis-à-vis the legislative and executive branches must be secured. At the international level, however, there is no functioning separation of powers on that basis. The United Nations Organization is no world state, and the Security Council is all the more not an agent within a proper system of checks and balances which, under the prevailing international conditions, doesn’t even exist in rudimentary form. Since the Court has no enforcement powers of its own, except indirectly and only if it acts on the basis of a referral from the Security Council, and in view of its record, one cannot avoid asking whether the states that established this permanent institution, which is aimed at the universality of criminal justice, have not put the cart before the horse. The very idea of justice risks to be frustrated by the realities of power politics.

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