by Richard G. Wilkins, professor of law and managing director, World Family Policy Center, J. Reuben Clark Law School, Brigham Young University
INTRODUCTION
The Statute for the Creation of the International Criminal Court (or "ICC Statute") was adopted at a high-level diplomatic conference in Rome, Italy, in July 1998. Just two weeks ago, documents establishing rules of procedure and definitions of criminal conduct were finalized by a Preparatory Commission in New York. These events culminate a decades-long effort to establish a permanent judicial body to prosecute international crimes, and represent a dynamic shift in international politics. The ICC statute purports to create a judicial mechanism with jurisdiction potentially reaching every individual on the face of the earth, whether or not that individual resides in (or is a citizen of) a country that has ratified the statute. The Statute, furthermore, is now seen by many pressure groups as (perhaps) the principal means of enforcing the multitude of human rights norms generated by the United Nations conference system.
Whether the creation of the ICC should be lauded or deplored is certainly debatable. As I left the final session of the Preparatory Commission in New York two weeks ago, Roger S. Clark, a Professor of Law from Rutgers University who represented Samoa during all ICC negotiations, quipped to me from across a hall, "Now, fight fair." His comment reflects the facts (apparently clear to him after interacting with me for two years) that he and I have somewhat differing views regarding the ultimate merits of the Court, and that the creation of the ICC is – indeed – worth a fight. Moreover, while we probably disagree on several points, I certainly concur with Professor Clark that any dispute regarding the merits of the ICC should be fair. Fair consideration of the merits of the ICC, however, must go well beyond the sort of "instant analysis" so prevalent in modern legal and political discourse.
It is quite easy to support the general notion of an International Criminal Court. After all, the Statute ostensibly deals only with deplorable offenses: genocide, war crimes, and crimes against humanity. ICC supporters, furthermore, fervently believe that the Court will deter and punish the commission of these detestable acts. It is hard (if not impossible) to argue against such objectives. No compassionate person wishes to increase the burden of human suffering in the world. But, wanting to do the right thing is not enough. One must also do the right thing the right way. The ICC, I fear, does not.
As currently structured, the ICC Statute transfers a vast amount of decision making authority from previously sovereign nations to an international court that will be remote from (and unable to be controlled by) the diverse cultures and peoples of the world. It does so by means of language which is vague and, therefore, capable of expansion to conduct well beyond that which (at present) is considered to be within the customary reach of genocide, war crimes and crimes against humanity. The Court's structure, finally, permits pressure groups to obtain ready influence over prosecutorial functions. The net result is that the ICC has the potential to become – not a Court dealing primarily with "the most serious crimes of international concern" – but a tool for radical social engineering. This potential is so great that I fear the Court may well tread upon the fundamental right of nations to democratic self-determination protected by the UN Charter and numerous human rights instruments.
I shall proceed by, first, quickly tracing the genesis of the ICC. Second, I will outline the jurisdictional scheme established by the ICC Statute, and discuss how this jurisdictional scheme – under the vague notion of "complementarity" – transfers decision making power from national governments to international judges. Third, I will briefly explore some possible abuses of the vague substantive "crimes" condemned by the Statute. Fourth, I will examine the ability of pressure groups to influence prosecutorial functions. I will conclude by questioning whether the ICC's unprecedented intrusion upon national sovereignty is, indeed, consistent with respect for basic human rights.
I. GENESIS OF THE ICC
In 1951, following the conclusion of the Nuremberg and Tokyo War Crime Tribunals, a proposal was circulated among members of the newly formed United Nations to create a permanent standing court. The proposed court would be responsible for prosecuting grave crimes of international concern committed in armed conflict. Nations of the world initially balked at the idea of a permanent court because of the potential ramifications for individual state sovereignty. The idea, however, continued to resurface whenever the world was confronted with serious war-time crimes. Finally, at the conclusion of the Gulf War in December 1989, the General Assembly of the United Nations passed a resolution calling for the official creation of a permanent criminal court to deal with war-related atrocities.
Public pressure for the creation of a permanent court increased in the early 1990's as the world reacted to reported atrocities in Rwanda and the former Yugoslavia. Informal meetings on the issue, commenced early in 1990, ultimately resulted in a draft statute for the ICC. As that draft statute emerged, however, the mandate for the proposed ICC slowly but steadily expanded. Instead of dealing solely with well-established customary war crimes, the draft text became a veritable handbook on emerging human rights law, weighted with countless provisions never envisioned by the General Assembly's initial resolution to create the ICC. This complex and convoluted draft statute was presented to U.N. delegates at Rome during the summer of 1998 for finalization.
The draft statute presented to the diplomatic conference went well beyond the initial draft prepared by the International Law Commission (or ILC). The ILC draft, for example, generally restricted the jurisdiction of the proposed International Criminal Court to nations that had become a party to the treaty creating the Court, and limited the substantive reach of the Court to customarily recognized international crimes. The final version of the Statute adopted in Rome, however, went well beyond this (by comparison) modest proposal. The Statute created a Court with hitherto unprecedented jurisdictional reach and with substantive authority to adjudicate a long list of crimes previously unknown to the established canon of customary international law.
II. THE ICC'S INTRUSION UPON DOMESTIC LAW
The jurisdiction claimed by the ICC is unquestionably novel. Not since the Treaty of Westphalia in 1648 has a treaty ever purported to bind parties who are not signatories to the treaty. The ICC Statute, however, does just that.
As adopted in Rome, the ICC Statute asserts jurisdiction over defendants so long as either the "State on the territory of which" a crime was committed or "the State of which the person accused of the crime is a national" has ratified the statute. Accordingly, the Statute asserts jurisdiction over a large potential class of defendants residing in non-signatory states. So long as the "crime" is committed in a signatory state, non-ratification of the ICC Statute by the state in which a purported criminal defendant resides will not defeat jurisdiction. As a result, a decision in one state to engage in conduct that has an impact in a second, ratifying state will subject the conduct to prosecution – even if the first state has not ratified the ICC Statute. This notion is often referred to as "inherent" or "universal" jurisdiction.
The concept of "inherent" or "universal" jurisdiction can be very broad indeed. In its most expansive form, such jurisdiction supposedly confers power upon a nation to prosecute an alleged criminal for an act regardless of where the act occurred and whether or not the alleged criminal is a citizen of (or even present in) the prosecuting state. Proponents of the Court often argue that this broad notion of "universal" jurisdiction is well established. This assertion, however, is unfounded.
Prior to the adoption of the Statute, various international theorists had used the term "universal" to describe a state's power to prosecute a limited class of exceptionally serious customary offenses, such as piracy, slavery, genocide and war crimes. But any use of the term "universal" to describe a state's customary power over these crimes is highly questionable. While there is sound support for the notion that all nations could prosecute an individual for the crime of piracy – no matter where the crime of piracy occurred or what the nationality of the pirate was – there is virtually no evidence that states possessed such broad jurisdictional power with regard to any other offense. Indeed, Professor Clark – after scouring international cases, texts and treatise writers for evidence of universal state jurisdiction over piracy, slavery, genocide and war crimes – concludes that "[u]niversal state jurisdiction applies to the exceptional case of piracy and otherwise finds no support whatever in the texts."
The notion of "universal" jurisdiction adopted in the ICC Statute, therefore, represents a clear departure from established international legal theory. This departure, moreover, deals a serious blow to the concept of national sovereignty. By asserting that the International Criminal Court can claim jurisdiction over a non-signatory state and its citizens, the ICC Statute makes an unabashed claim of international supremacy over the actions of domestic policymakers. Inherent in this claim is the startling conclusion that the International Criminal Court, as an organ of international government, has the power to coerce and command a (previously) sovereign state, regardless of that state's assent to the treaty creating the Court. It has been standard law for centuries that "[t]reaties cannot create obligations for states who are not parties." By declaring the contrary, the ICC Statute (in the words of the Government of India on the final night of the ICC diplomatic conference) has "claimed a victim of its own – the Vienna Convention on the Law of Treaties."
One could argue, of course, that all criticisms of universal jurisdiction based on pre-ICC legal theory and state sovereignty are beside the point. That is, no matter what the customary law once was, the nations of the world have now come together to alter the previous world view; whatever the sovereign powers of nation-states once were, a portion of those powers has now been delegated to an international body. These arguments are subject to at least two serious objections.
First, the ICC Statute (along with its dramatically expansive view of the Court's jurisdiction) becomes operative once it is ratified by a mere 60 nations. Even if one were to concede that nations can readily delegate their sovereign power to a newly created international entity (a proposition that I seriously question), the ICC Statute hardly represents a world-wide concession of such powers to the Court. Adoption of the Rome Statute by fewer than one-third of the recognized nations of the earth is hardly sufficient consensus to cast aside the legal structure established by hundreds of years of developments in customary international law.
Second, and more importantly, reason and prudence dictate against disregarding the established boundaries of international law. The International Criminal Court's expansive jurisdiction seriously endangers the right of the people residing in nation-states throughout the world to govern and order their own affairs and to respect and/or alter their own cultural and religious traditions. This threat to national self-determination should not be dismissed lightly.
The Statute, according to its terms, is designed to be "complementary to national criminal jurisdictions." As such, the Court is designed to take jurisdiction only when a nation is "unwilling or unable" to act. This language appears to protect national sovereignty, and is invoked by proponents of the Court to calm concerns that the Court might seriously intrude upon questions (such as culture and religious practice) that, according to the UN Charter, are "within the domestic jurisdiction" of a nation-state. But, while it sounds reassuring, the notion of "complementarity" is a legal shadow. Rather than protecting national sovereignty and local democratic self-determination, the concept of "complementarity" operates much like an international supremacy clause.
A recently issued manual for the ratification and implementation of the Rome Statutes explains that "the ICC is no ordinary international regulatory or institutional body." Indeed, in order to comply with the dictates of "complementarity," the manual asserts that "modifications" must be made to a state's "code of criminal law . . . and human rights legislation." Why? Because, if national law diverges in any important detail from the law established by the ICC Statute, that nation will invite the international Court to step in and take action. As the manual states, "should there be a conflict between the ICC legislation and existing [state] legislation," international law established under the ICC "takes precedence." Accordingly, the manual declares that "[i]t would be prudent" for states "to incorporate all acts defined as crimes" into their own "national laws."
Other Court advocates are even more blunt. A booklet issued by The Women's Caucus for Gender Justice asserts that "ratification of the treaty creating the Court will necessitate in many cases that national laws be in conformity with the ICC Statute." The caucus states that implementation of the ICC Statute will provide an opportunity for groups "all over the world to initiate and consolidate law reforms . . . ." Indeed, the gender caucus asserts that "[i]t is this aspect of the Court – the possibility of national law reform – which may present the most far-reaching potential" for change "in the long run." According to the Caucus, "States parties will be required to review their domestic criminal laws and fill in the gaps to ensure that the crimes enumerated in the ICC Statute are also prohibited domestically."
In other words, national law must mirror the terms and conditions of the ICC Statute, and ultimately the judicial decisions of the ICC itself. Otherwise, a state will find its law being circumvented by the Court, which will take jurisdiction because that state will be found "unable" to act. This is the process by which "complementarity," instead of a shield, becomes a sword.
III. SOCIAL POLICY AND "CRIMINAL" ACTS
One might again argue, "So what?" Even if the ICC Statute and the Court's forthcoming judicial decisions supplant all conflicting national law, the Court will only deal with "the most serious crimes of international concern." Therefore, there is no real risk that international judges will supplant the policy decisions of national legal systems in areas of true domestic concern. The elastic terms of the ICC Statute, however, suggest that the Court – rather than occupying itself solely with genocide, mass murder and other similarly egregious acts – may become the ultimate forum for the resolution of delicate questions of social policy.
The language of the ICC Statute is sweeping. Although the Statute purports to reach only serious crimes, the potential breadth of the crimes set out in articles 6, 7 and 8 of the Statute is limited largely by the imaginations of international lawyers and the judicial restraint (or lack of it) that will be exhibited by the judges on the Court. The crime of genocide, for example, includes not only killing members of a "national, ethnical, racial or religious group," but also "causing serious . . . mental harm to members of the group." As such, the ICC's machinery conceivably could be called into play to prosecute the racially and religiously charged rhetoric often employed by both sides of the on-going dispute regarding a Palestinian homeland in the Middle East. While no rational person approves of rhetoric inspired by racial or religious animus, it is far from clear whether such name-calling-contests qualify as "most serious crimes of international concern."
Of much greater concern are the potentially far-reaching "crimes against humanity" set out in Article 7. The Statute condemns as "crimes against humanity" such acts as murder, extermination, enslavement, forcible transfer of population, torture, sexual slavery, persecution and "other inhumane acts." These crimes certainly sound terrible, but the ICC Statute gives very little guidance as to what these words actually proscribe.
For example, the crime of "persecution," as set out in the Statute and as further refined in the recently issued "Elements of Crimes," condemns the "severe deprivation" of a group's "fundamental rights." The crime of "inhumane acts" criminalizes the infliction of "great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act." What do these terms proscribe? At present, it is impossible to say definitively. But, the arguments of some proponents for the Court suggest that the reach of these proscriptions will be far broader than a quick reading of the ICC Statute might suggest.
Consider some of the rhetoric of activists at the forefront of society's gender wars. According to one prominent legal theorist, women have the choice of "either . . . marrying or . . . aligning herself with a pimp . . . . In both cases she typically becomes emotionally, financially, physically, and sexually dependent on and subordinate to a man." Another legal scholar, Dianne Post, in a recent edition of The Women's Rights Reporter, has boldly called for the abolition of marriage. According to Ms. Post,
Marriage itself originated as a way for a man to have one woman at his beck and call. For a woman, it was at first a relief to be responsible only to one man, who was obligated to provide for her, rather than to the entire tribe or clan as was a single woman. Feminist rhetoric that the only difference between a prostitute and a wife is that the wife has sold herself to only one man has a basis in history.
In other parts of her article, Ms. Post argues that marriage constitutes unjustifiable persecution of women on economic and other grounds.
Were Ms. Post (or others of similar ideological ilk) to serve as the judges and prosecutors for the International Criminal Court (a distinct possibility), the crimes of inhumane treatment and persecution could be used to indict government (or religious) policies dealing with marriage and dissolution of marriage. Laws and religious practices that promote marital union, for example, arguably impose "great suffering" and "serious injury" to the mental health of a spouse who wishes to dissolve the relationship, thus constituting "inhumane acts." Similar arguments, centered upon the claim that autonomy is a "fundamental right," could be made under the rubric of the crime of persecution.
While these (and related) arguments unquestionably press the outer boundaries of the ICC's plain language, they cannot be dismissed. In Rome, The Women's Caucus for Gender Justice boldly attempted to use the ICC's judicial machinery to create a world-wide right to abortion. It did so by inserting the previously unknown crime of "forced pregnancy" into the Statute. The premise of this crime was straightforward: if a woman became pregnant and was unable to terminate the pregnancy because national law prohibited or regulated access to abortion, the woman would be unlawfully "forced" to be pregnant. Because of its novelty and obviously far reaching impact, the issue of "forced" pregnancy became one of the most contentious at the entire Rome conference. And, although the caucus' effort to obtain global abortion on demand ultimately failed, the very attempt makes clear that the ICC Statute can be used – not just to prosecute criminals – but to create social policy.
Accordingly, 11 Arab nations (during a December 1999 Preparatory Commission meeting held to draft Rules of Procedure and Elements of Crimes) introduced a proposal which, among other things, insured that the ICC would not be used to prosecute "family matters." The document also sought to protect the "rights, duties and obligations incident to marriage" as well as fundamental "religious principles" from becoming subject to prosecution. In March of this year, The Women's Caucus for Gender Justice responded by issuing two documents: (1) a booklet which explains how the ICC can be used to enforce the Beijing Platform for Action and (2) recommendations and commentary on crimes against humanity. These documents demonstrate that – whatever its "plain language"– the ICC Statute can be used to restructure family life and religious practice.
During the past decade, the United Nations System has negotiated numerous "platforms," "agendas" and "declarations" setting out aspirational goals for Member States in virtually every area of human life. The Women's Caucus for Gender Justice unquestionably intends to use the International Criminal Court to enforce these (previously) "soft law" norms. As the caucus' March booklet explains, "the creation of the world's first permanent criminal court" provides "an opportunity to codify as international law . . . many of the strategic objectives outlined and committed to by Governments in [such documents as the Beijing] Platform for Action." The ICC, in short, could transform previously unenforceable (and often broadly worded) norms into indictable criminal conduct. In the Caucus' view, the ICC is not merely (or even primarily) a court to deal with the "most serious crimes of international concern." Rather, the ICC is an institution with which to achieve "many of the commitments in the [Beijing] Platform for Action as well as a mechanism through which to achieve others."
Therefore, if the gender caucus is to be taken at its word, the ICC Statute can (and will) be used to re-engineer social policies throughout the world. In fairness to the proponents of the ICC, any use of the Statute to reach beyond clearly established international crimes will be difficult. The recently completed Preparatory Commission meetings on the Court's rules of procedure and elements of crimes tightened up numerous restrictive elements of the Statute. But, I have been a lawyer (and a law professor) long enough to know that almost any verbal knot can be untied if the lawyers (and judges) engaged in the task are infused with enthusiasm and ingenuity. The NGO and legal communities that support adoption of the ICC have plenty of both – and to spare.
Judicial action that refashions social norms has become quite commonplace in the United States, Canada, and the European Union. The impact of such judicial tinkering is now becoming clear in the decaying family and social structures in these parts of the world. The International Criminal Court could well become the mechanism by which the Western innovation of judicially (rather than legislatively) crafted social policy – and its accompanying consequences – are exported to the rest of the world.
IV. PROSECUTORIAL ABUSE
One of the most important characteristics of a sound judicial structure is judicial impartiality. In Rome, however, certain groups made it quite clear that they intended to use the court to enforce and further their particular (and debatable) social agendas. Perhaps the largest interest lobby at the conference espoused the vague concept of "gender sensitivity" as a litmus test for judicial selection. As a result, the Draft ICC Statute required "gender balance" on the court and mandated that any judicial nominee must possess "expertise on issues related to sexual and gender violence." These selection criteria were problematic because they have no well-established, universally recognized and cohesive legal meaning. "Gender balance" could have created a "gender" quota for the court that would undermine any selection system based primarily on merit, and could have even required that judges be selected precisely because of their particular "sexual orientation." The requirement of "expertise" on "sexual and gender violence" had equally ambiguous ramifications.
Expert "gender" judges and prosecutors, of course, might be expected to be receptive to the kinds of arguments proposed by legal scholars who would subject domestic family law to the perceived human rights strictures gleaned from the ICC Statute's list of "crimes against humanity." As adopted, however, the ICC Statute does not require specific "gender expertise." Instead, the Statute mandates that "States Parties shall . . . take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children." One can only wonder how judges with "legal expertise" regarding "violence against women and children" will receive arguments asserting that various cultural and religious practices violate international humanitarian law.
But, even assuming the International Criminal Court is graced with the most
impartial and gifted judges the world has ever known, the prosecutorial structure
established by the ICC Statute raises serious concerns. As adopted, the ICC
Statute grants the prosecutor "proprio motu" powers; that is, the
prosecutor has the power (subject only to review by a panel of ICC judges) to
initiate an investigation and prosecution completely on his/her own authority
and without oversight or control by any national or international power. While
this provision was purportedly designed to prevent the prosecutor from being
swayed by "political" concerns, experience in the United States suggests
that there is more to fear from a politically unaccountable prosecutor than
from a politically accountable one.
Following the resignation of President Richard Nixon, the United States embarked
upon a well-intentioned experiment with proprio motu prosecutors. Fearing that
prosecutors under the control of the President would be unable to prosecute
effectively Executive Branch wrongdoers, the U.S. Congress passed the Ethics
in Government Act of 1978, which authorized the appointment of "independent
prosecutors." But, rather than demonstrating a penchant for apolitical
and unsullied prosecutions, the history of the independent prosecutor's office
demonstrated just the contrary. An "independent" prosecutor may not
be answerable to established political organs, but such a prosecutor is (in
fact) readily swayed by general political currents, popular sentiments, and
personal political predilection. Accordingly, America's experiment with independent
prosecutors has now been abandoned.
In conformity with this experience, the United States (along with a few other countries) argued that the ICC prosecutor should be permitted to proceed only upon referral of a case by a nation/state or an appropriate UN body. That proposal was rejected and the ICC Statute, as drafted, confers expansive investigational and prosecutorial authority on the prosecutor.
This broad prosecutorial power – rather than being immune to political considerations – may be particularly subject to the most corrosive kinds of political influence. Article 44 of the Statute allows the prosecutor to accept "any . . . offer" of "gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations." "Gratis personnel" are personnel paid for by third parties. But, while their salary is paid by a third party, such personnel are nevertheless performing the "work . . . of the organs of the Court." One can expect that many of these "gratis personnel" will be supplied by well-funded international NGOs who are hostile to religion and traditional values. An independent prosecutor's office free from any real governmental control is dangerous enough. An independent prosecutor's office staffed by NGOs with ideological axes to grind is positively frightening.
CONCLUSION: SOVEREIGNTY AT THE CROSSROADS
As I have outlined above, the International Criminal Court transfers a vast amount of decision making power to judges who will be guided by vague language and driven by a politically unaccountable prosecutor. This intrusion upon national sovereignty is unprecedented. As set out at the start of this essay, whether or not this unprecedented development constitutes "doing the right thing" the "right way" depends, in large measure, upon the respect one holds for the very notion of sovereignty. I also realize that, in many national and international legal circles, respect for the notion of sovereignty is at an all-time low. Therefore, in the end, whether or not creation of the International Criminal Court is "doing the right thing" the "right way" depends upon whether national sovereignty, itself, deserves preservation. I believe that it does.
Respect for national sovereignty is a bedrock principle of the UN Charter. Article 2, paragraph 7 of the United Nations Charter provides:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter . . . .
We now stand at the historic point where an international organ will have the inherent power to intervene in domestic social policy. Those who applaud this development, and there are many, expect the nations of the world to willingly surrender important aspects of national sovereignty in the name of "human rights." This is a dangerous course. National sovereignty, rather than inimical to "human rights," is fundamental to the preservation of those rights.
Key among fundamental human rights are the rights to democratic self-governance and self-determination, the right to maintain diverse cultural and religious practices, and even the right, if people so choose, to "vote their conscience" and to establish governments based on religious principles. These rights are set forth in numerous UN pronouncements, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. . . . The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections.
Everyone has the right to freedom of thought, conscience and religion; this right includes . . . freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
These human rights and individual freedoms are best served if countries preserve their sovereignty and the right to govern their own domestic affairs. An autonomous international court will not be responsive to the culturally diverse peoples of the world. Moreover, governance by judges is inherently undemocratic. The power to determine the contours of domestic policies must be kept close to home – close to the people being governed.
The process of evolution toward democracy and greater freedom and equality has taken and will continue to take place. This process is inevitable as modernization occurs, communications improve, and the peoples of the world become better educated. It is as inevitable for women as it is for men. The United Nations, as an international forum for expressing human rights principles and encouraging their adoption, has doubtless helped to speed this process along. But, notwithstanding the important contributions of the UN, each nation must have the freedom to undertake this evolution in its own manner, in ways adapted to its own unique culture. The Western nations have had this freedom; it must be allowed to all.
Many "human rights" issues are, fundamentally, political questions that should be answered by the political processes within each country. The often-difficult debates surrounding many newly established and/or emerging "human rights"(such as family rights, abortion and same-sex marriage) should not be resolved by giving an international court the power to declare that its ideological opponents are "criminals."
The United Nations was not designed to possess, let alone exercise, sovereign powers. The UN Charter does not give the UN the power to "enforce" human rights ideas upon sovereign nations. Rather, the Charter calls upon the United Nations merely to "promot[e] and encourag[e] respect for human rights." It would be a tragic irony if, in the name of "human rights," the nations of the world give potentially despotic power to a court that will be remote from the individual people of the world, but that will have the power to prosecute and punish them for "social crimes."