Human Rights

Human Rights and the International Criminal Court (ICC)

Roger Dittmann, Ph.D.
Professor of Physics Emeritus
National Coordinator
U.S. Federation of Scholars and Scientists
California State University, Fullerton, CA92634-6866
(714) 278-3421 or -5810 (fax); RDittmann@Fullerton.edu

---U. S. Senator Alfonse M. D'Amato (R-NY)

 Introduction.

Two main judicial approaches to human rights present themselves: Human Rights Courts and Criminal Courts. They are not mutually exclusive. In 1988 I wrote, "Dateline 20 August 1953: A Revised Draft was prepared by the Committee on International Criminal Jurisdiction to establish an International Criminal Court [ICC] with a Prosecutor which could have enforced the Nuremberg principles, something that currently seems a distant aspiration." That aspiration has a much longer history and is no longer so distant. The tragedies of Rwanda and Bosnia resulted in the formation of ad hoc tribunals. There was an unsuccessful call to form a similar ad hoc tribunal to deal with atrocities perpetrated in Somaliland. The chain of ad hoc tribunals revived interest in the establishment of a permanent ICC.

Since 1953, the General Assembly has recognized the need for an ICC, but recent interest has also been motivated, in part, by dissatisfaction with the ad hoc tribunals. To establish an ICC within the UN itself would require a revision of the UN Charter. This route is blocked by Article 108, because the affirmative vote of the U.S. government, which is implacably opposed to a principled court, is required, as is that of the other non-elected members of the Security Council. Recently, the UN General Assembly resolved to surmount this obstacle by proceeding beyond the UN Charter, by convening an international governmental conference that could establish an ICC by multilateral treaty. The obstructionism by the U.S. lead Kofi Annan to opine that it is better to launch a strong court without the U.S. government than a weak one with it.

Rather than a "strong" court, a "principled" court is herein advocated, with as much support, approval, ratification, and "strength" as can be mustered. In general, it is easier to agree upon principles first than it is to settle particular disputes about details ("Where the devil resides"), then to proceed with the details with constant reminders of the principles that have already been agreed.

Opposition to the following basic judicial principles finds few supporters:

1. Universal applicability.

2. Uniform enforcement.

3. Independence of judiciary, prosecution, and administration.

4. Complementarity [National statutes remain in effect. International law covers areas beyond the jurisdiction, competence, and expertise of national law.]

5. Due process.

The U.S. government opposes the first three principles by advocating voluntary jurisdiction, and voluntary funding, and Security Council "veto" over the ICC.

The world may be ready to accept universal applicability of near consensus human rights treaty law, especially if there is strong support from the people resident in the territories of recalcitrant governments. Arrest of indicted defendants on the national territory of such governments may not be feasible, but their travel would be restricted. Of course, there already exists a precedent for the arrest of indicted nationals in the case of defeated nations. It is difficult to find defenders of this de facto practice who would advocate that it be made de jure--that only criminals from defeated nations be indicted and tried.

Jurists from recalcitrant countries could be invited to participate on the court. This would increase the pressure on these nations to join the community of civilized nations.

Citizens from recalcitrant countries could be given standing denied to the governments, tih salutory political effects.

International criminal law can be further developed through multilateral treaties in the absence of a legislative body, although the Rome Treaty for the International Criminal Court envisions that the Assemblies of States Parties would convene to define aggression and the elements of crime, in essence becoming a global parliament of representatives of ratifying governments devoted to codifying criminal law. Previously, war and aggression were not illegal--only the "rules of engagement" were matters of treaty law. The Rome Treaty defines aggresion as a crime pending definition by the Assemblies of States Parties.

It is conceivable that the court, i.e., the Assembly of States Parties, could recognize General Assembly (GA) Resolutions as law, or at least approve recommendations from the GA—essentially awarding the GA legislative power in the field limited to the court’s jurisdiction.

On a domestic level, offices like Ombudsman have been established in some countries, but Criminal Courts are the dominant judicial mechanism to protect (some) human rights. The criminal statutes drawn to protect human rights are narrowly drawn compared to the consensus declarations of human rights enunciated in the multilateral consensus declarations: the 1948 Declaration of Human Rights [which gained greater authority by approval of the GA], and the 1993 Vienna Declaration and Program of Action. Of course, criminal law could conceivably also cover victimless crimes, crimes against the state, and behavior in violation of other norms, but the Rome Treaty essentially codifies the Geneva Accords, defining Crimes against Humanity, War Crimes, and Genocide [plus criminalizing aggression]..

History.

Major tragedies induce movements to try to avoid repetition. World War I (known then as The Great War, before the necessity of chronological numbering became obvious) resulted not only in the formation of the League of Nations; the Versailles Treaty established an international tribunal to try the German Emperor for "supreme offense against morality and the sanctity of treaties". This was a classic case of "victor’s justice", also known as "might makes right", but it advanced the cause of international criminal justice merely by the precedent of founding the international tribunal, despite the fact that Kaiser Wilhelm never stood trial.

The tragedy of World War II resulted not only in the United Nations; the ad hoc, post hoc Nuremberg trials tried, convicted, and executed war criminal from the losing side, in violation of principles of due process. This was again a manifestation of victor’s justice, but it further advanced the cause of international criminal justice by identifying international categories of crimes of aggression, war crimes, and crimes against humanity in the Charter of the Nuremberg Tribunal in August 1945, all of which are still considered to be the major categories of international crimes, but which lack the specificity a legislature could provide in a criminal code that would satisfy principles of due process. Vagueness and arbitrariness are enemies of due process. The Nuremberg Principles also included the fundamentally important principle of individual responsibility and culpability, notwithstanding orders from higher authority. The Genocide Convention was adopted by the UN General Assembly in 1948. It provided that persons charged with genocide be tried either before a court of the state in which the act was committed, "or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction" (emphases added). As such, it shrank from the Nuremberg principle of universal (imposed) jurisdiction, lapsing into the time honored "might equals right" mode.

The four Geneva Conventions were opened for signature in 1949. The four Conventions were:

I) The protection of the wounded and sick in armed forces in the field;

(II) The protection of wounded, sick and shipwrecked members of armed forces at sea;

(III) The protection of prisoners of war;

(IV) The protection of civilians in war.

These Conventions did not envisage the creation of an ICC, but they did oblige states parties to domestically penalize acts considered to be "grave breaches" of the four Conventions.

In the aftermath of the Nuremberg trials, principles of individual accountability were enumerated in the 1950 UN Declaration on Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal [In 1977, two Additional Protocols were added on the duties of states to protect persons both in international and non-international armed conflict].

Also in 1948, the United Nations General Assembly requested the International Law Commission (ILC), to report on the establishment of a permanent international criminal court. Two draft statutes were drawn in 1951 and 1953, but the anticommunist crusade [Cold War] interrupted the process.

In 1989 Trinidad and Tobago proposed that efforts at drafting an ICC statute be resumed in order to create an international judicial institution capable of dealing with the increase in crimes of international drug trafficking. The General Assembly's first request to the ILC, in 1990, was reiterated in 1992, when the Commission was asked to complete the drafting of an ICC statute as a matter of priority. That urgency was underscored, in part, by the widespread atrocities being committed in the war in the former Yugoslavia.  Reports of egregious violations of international humanitarian law in that region precipitated a series of warnings by the Security Council that those responsible for the abuses would be held personally accountable. In 1993, the Security Council created the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (ICTFY). The tribunal's subject- matter jurisdiction covers grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide and war crimes. Its establishment marked a turning point in the development of international law. 

Treading on previously untested ground, the Security Council drew on its Chapter VII powers to set up a judicial organ as one of its subsidiary bodies. It not only defined the tribunal's structure and jurisdiction, but obliged all UN member states to cooperate and comply with its requests and orders. The Council's unprecedented step paved the way, a year later, for the creation of an ad hoc tribunal empowered to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in Rwanda. By bringing the two tribunals into existence, the Security Council clearly signaled the international community's commitment to supporting the principle of individual accountability for crimes under international law. The creation of these ad hoc tribunals has enhanced the prospects for establishing a permanent international criminal court.

The ILC submitted a draft statute for an international criminal court to the General Assembly in 1993. Upon receiving comments from governments, a revised draft statute was submitted by the ILC to the General Assembly in 1994, with the recommendation that it "convene an international conference of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an international criminal court." Due to political differences on the desirability of creating an effective criminal court and on the pace at which work should proceed, the GA set up an Ad Hoc Committee to review the ILC's revised draft statute. Member states and specialized agencies of the U.N. were invited to take part in the Ad Hoc Committee's debates and to submit comments on the draft statute.   The Ad Hoc Committee met in April and in August of 1995.

After a thorough examination of the main substantive and procedural issues arising from the draft statute, it, too, concluded that further discussions should be combined with the drafting of texts in preparation for a diplomatic conference. After the Sixth (legal) Committee of the U.N. General Assembly endorsed the Ad Hoc Committee's approach, the General Assembly decided to establish a Preparatory Committee to begin negotiations on the text of the statute. The Preparatory Committee met in New York in March and is convening again in August 1996. Once the drafting phase was completed, the text was submitted to a conference of diplomatic representatives authorized to adopt the final version.

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