To Back the International Criminal Court or Not?

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On 7/12/02 the U.S. Ambassador to the U.N. Negroponte said "Some members of this Council are members of the International Criminal Court while others, including the United States, are not and never will be…The President of the United States is determined to protect our citizens — soldiers and civilians, peacekeepers and officials — from the International Criminal Court…" What reasons prompted these statements?

Why was the U.S. one of 7 nations in July of 1998 that voted against its formation while 120 voted in favor and 21 abstained? The roster of nay-sayers included Iraq, Libya, People’s Republic of China, Israel, Qatar and Yemen.

Does the ICC weaken or strengthen statism? Does it lead toward more or less justice? Does it tend toward less or more aggression?

Here is some background. The ICC has been set up by States. The jurisdiction of the ICC extends to member States only, or to States that may sign special agreements from time to time. The Rome Statute of 7/17/98 is the ICC’s charter, constitution, or set of rules. So far, 100 States are members.

Three of the five permanent members of the Security Council (U.S., Russia, and China) are not members, but France and the United Kingdom are. Other populous countries that are not members are India, Japan, Pakistan, and Indonesia. In the Middle East, Israel, Syria, Egypt, Iraq, and Iran are non-members. A substantial fraction (near 30%) of the members are either in the EU or aiming to join. Many of the remaining members are small countries. In point of fact, the ICC has not been accepted by the world’s big league nations.

The ICC selects four kinds of cases to hear: genocide, crimes against humanity, war crimes, and the crime of aggression. These crimes, apart from the crime of aggression which has not yet been defined, are defined in the Rome Statute. They form an extensive set of culpable activities. The intent of the ICC is to hear only the most important, serious, or significant instances in which great crimes may be occurring, crimes that horrify the consciences of people worldwide.

The ICC is a court designed to complement national courts. The latter retain jurisdiction over the covered crimes. If they are unable or unwilling to act, then the ICC may.

Cases are referred to the ICC by individual States, by the U.N. Security Council, or they are initiated by the Prosecutor of the Court by his own motion. The latter method provides a procedure by which representations from victims can be heard and a Pre-Trial Chamber can decide whether or not to accept the case. The State referral means that any member can refer a case occurring in any other State for prosecutorial investigation.

The Rome Statute applies to all individuals, including government officials. Article 27 of the Rome Statute states "This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence."

The Statute applies to military commanders and superiors. They are held responsible for crimes committed by subordinates where they knew that such crimes were ongoing or about to be committed and did not take measures to stop or report them to other authorities. The Statute (in Article 7) apparently reaches toward any group that commits "crimes against humanity." These may occur in the context of wars, rebellions, revolutions, insurrections, armed militias, secessions, civil wars, but could occur in peacetime or in other ways.

The Statute applies to any person of any nationality, even of a nonmember State, if that person is alleged to commit a covered crime on the territory of a member State.

Under Article 16, the Security Council can pass resolutions that defer action of the ICC for 12 months, and that request may be renewed: "No investigation of prosecution may be commenced or proceeded with for a period of 12 months after the Security Council…has requested the Court to that effect…" Member States and apparently even nonmembers who are in the U.N. Security Council can affect the ICC via Article 16. However, since a permanent member has a Security Council veto, a single member can prevent deferral via resolution.

Article 16 was invoked days after the ICC went into effect. On 7/12/02, the Security Council passed Resolution 1422. It asked deferral of any cases that might arise "involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation…" This was renewed in 2003 by Resolution 1487, but in 2004 it was not renewed. The U.S. pushed for Resolutions 1422 and 1487 but failed to get enough votes in 2004.

We may now analyze the ICC. Evaluation of it varies according to one’s perspective. My main goal is simply to make clear what several evaluations might fairly be.

From an economic perspective, does creation of the ICC improve everyone’s well-being on the planet? Is it Pareto optimal, making everyone better off without making anyone worse off? The answer is no. States fund the ICC through taxes, and they involve coercion. The Court can arrest and detain defendants. That’s coercive. The ICC continues a system of nation-states by which the provision of justice is cartelized by States or political authorities, raising the barriers to entry of private judicial service providers. That makes many people worse off. States are parties to the ICC. From the perspective of these member States or its controlling persons, they voluntarily entered the Rome Statute, so they must have considered this an improvement in their welfare.

The ICC makes a step in the direction of a monopolistic supra-national world government. It establishes a distant bureaucracy that removes the individual further from directly influencing the provision of judicial services. The ICC, being funded by taxes and controlled by States, need not respond to individuals. It is partly beholden to the States that created it, partly dependent on public opinion, and partly influenced by its own bureaucracy and members. It is a political instrument whose power is checked and channeled mainly by the States that control it.

Individuals inside and outside this organization can in the future seek to expand its covered crimes and its jurisdiction. Member States might support such endeavors. The result can be to turn the ICC into an instrument of monopolistic control or tyranny. This may now seem very far-fetched because the ends of the Court are noble, but we have seen this happen before in the case of the U.S. Constitution.

A fundamental flaw of the ICC is that it is of political origin. Moreover, that origin is States, so that the Court is twice-removed from any notion that some may have of sovereignty of the people.

Before there was an ICC, a victim or person who wanted to obtain a remedy from one of the covered crimes could try to do so in a national court. This can still be done under the Statute, but only if that court is willing and able to judge the case. And this remedy is beneficial only if that national court acts without bias. For many of the covered crimes, this cannot always be anticipated. The national court may strongly favor the rulers of the State or a particular group or class or the country may be in such a condition that there is no court. On the other hand, there will be situations in which the rulers of a given State find it in their interest to support and hold fair trials for the crimes covered by the ICC.

If the national court is not a viable solution, another possible remedy is a U.N. ad hoc tribunal. This can still be done, but it depends on what the U.N. decides. Now there is the alternative of a sitting court, the ICC. From the perspective of plaintiffs or prospective plaintiffs, the ICC is probably an improvement in their welfare. They now possess a permanent option for obtaining remedies that did not exist before. I am, of course, assuming that they regard this benefit as worth more than the costs mentioned directly above and other negatives not yet discussed.

No doubt, the perception of these improvements is what brings major support to the ICC from many human rights groups, a supermajority of Americans, and many people from a variety of political persuasions. Here at last is an organization that promises to place in the docket and bring to justice those State and military officials who may have instigated heinous crimes. And what a list of crimes it is: genocides; intentional systematic attacks against civilian populations that involve extermination, murder, enslavement, deportation, imprisonment, torture, sexual crimes, persecution, disappearance of persons, and apartheid; and war crimes defined by the Geneva Conventions of 8/12/49.

The expectation of having in place a continual and permanent means of deterring such crimes is surely attractive to many and garners both rational and emotional support for the ICC. Supporters of the ICC see no viable alternative to hold in check the ever-increasing reliance by the U.S. on military dominance.

A citizen of a member State now has something they did not have before. The State’s military and officials and others can commit covered crimes only with the prospect of being brought before the ICC. Indeed, the member States in Article 17 have ceded to the Court an extraordinary power to proceed with a case even after a State is doing so or has previously done so, thus affording the citizens even greater prospects of a remedy.

This power means that the Court can open a case if it and it alone decides that a State trial is shielding a defendant, delaying trial to shield a person, or simply not proceeding independently and impartially. The member States have created in the ICC a kind of supreme court that does not have to wait for cases to be brought to it but that can preempt ongoing proceedings or start new trials after trials in national courts have already occurred. The member States have therefore given up significant sovereignty, although any State can withdraw upon one year’s notice.

But taking a case out of a national court might cause that nation to withdraw from the Court or incite others to withdraw, or they might try to amend the Statute. These actions might politically restrain the Court. They might make the Court weaker than Article 17 makes it seem. Conversely, some nations (rulers) might welcome the opportunity to shift a troublesome case to the ICC.

However this works out, Article 17 alters due process for the affected citizens. It allows legal double jeopardy or being tried twice for the same crime. Double jeopardy could occur even in a private justice system or under anarchy. However, the incentives do not favor it because it creates costly conflicts among courts, and courts bear these costs directly. In the case of the ICC, we can’t be sure how this will play out or whether the Court will ever invoke Article 17.

There are other pertinent issues to consider next, but if we pause here momentarily and attempt to reach a verdict on the ICC that satisfies all positions along the political spectrum, we see already that this is impossible. Anarchists and many libertarians will reject the ICC as aggressive, far from ideal, possessing a dangerous potential for a supra-state, and undermining due process of law. Some libertarians, human rights advocates, and utilitarian-minded individuals may weigh heavily the noble ends of the ICC and the practical good it might do now and in the foreseeable future. They will discount its use of aggressive means.

Published opinions, criticisms, and reviews of the ICC raise a number of other specific issues. Commentators sometimes raise the question: Should the U.S. join the ICC?

There is actually almost no chance of the U.S. or any other great power joining the ICC, unless they can change its charter so as to control it. Suppose that the U.S. joined. It would mean that our rulers relinquish some of their options to exercise violence. For example, Clinton bombed Khartoum, Baghdad, Yugoslavia, large portions of Iraq, and enforced sanctions that took many Iraqi lives. Jimmy Carter began the CIA support of Mujahadeen in Afghanistan. What President in generations has not militarily supported any number of dictators who suppressed their own people ruthlessly? In any number of violent situations, U.S. rulers or military commanders might be indicted and tried by a body that they could not control. This is not about to happen. The hopes of peace-loving activists that the ICC will provide the key to restraining a power like the U.S. are almost surely not going to be fulfilled.

I turn to a non-exhaustive list of criticisms of the ICC from various critics and perspectives.

(1) Some customary due process safeguards are absent. This is true. I already mentioned the possibility of double jeopardy. There is no trial by jury. (No trial by jury is a possible outcome with a free market for judicial services. Hence, it is no problem in this context.)

(2) The ICC, even if a treaty is signed, may not be a recognized court under Article III of the U.S. Constitution. It also does not provide all the features of due process in the 5th and 6th amendments to the Constitution.

(3) The ICC jurisdiction extends to anyone, even a citizen of a nonmember State. This is true. Bush administration officials argued that this was inappropriate because the Court was not accountable to the American people and its rules violated the U.S. Constitution. In this view, they were supported by Ron Paul. In a free market system of justice, extended jurisdiction is not a problem since sovereignty is absent. Accountability would be enhanced because providing justice might either be a fee for service enterprise, or provided by conscientious individuals as a charitable service, or supported by donations.

(4) The definitions of the crimes are inadequate. This is true. It is the case that the member States agreed to these definitions, but their broadness and haziness can act to the detriment of those who are charged with crimes. For example, superiors are held responsible, under certain conditions, for the acts of their subordinates; but the Statute does not make it clear that the superiors must have actively consented or ordered these acts. In one place, the Statute says that the commander is culpable if he "should have known" of a crime being committed. Vagueness occurs in several other places. For example, apartheid is not well-defined.

(5) From the defendant’s point of view, there are a number of negatives. The ICC can arrest and detain defendants. One ground for arrest is to prevent the person from continuing to carry on a crime. This is reasonable. The other grounds are broad and more questionable. They are to ensure the person’s appearance at trial and to ensure that the person does not endanger or obstruct the investigation or the court proceedings. A defendant could be detained for a long time.

Second, the Court is located in the Netherlands. This obstructs the defendant’s ability to call witnesses and possibly to gather evidence. Documentation and witnesses in war crimes trials are probably best obtained or called close to the scene, not far removed.

(6) The prosecutor has too much power and discretion. This is true, but legally irrelevant because the member States agreed to it. It could be politically relevant for those who wish to see the ICC in place and succeeding. The prosecutor can indeed ignore relevant cases, or take on politically motivated cases. However, there are checks to his discretion: his 9-year term, that he can be removed from office by a majority vote of the States, that cases must be accepted by the pre-trial chamber (although this may involve only a single judge), that States can appeal an investigation, that States can delay an investigation by acting on their own, that the Security Council can act under Article 16, the irregular influence of others (including in the ICC) upon him, his consideration for his own reputation, and the effect of his errors on the success of the ICC.

The fact remains that if the prosecutor or the ICC either ignore a good case or accept a weak case on political grounds, or even accept a very difficult or unpopular case, they may undermine the ICC’s own long-term effectiveness. Poor judgment anywhere along the way will compromise this institution. This is as it should be. Badly run courts should fail.

(7) Last, there are those who analyze the flaws of the ICC in political terms and forecast its ineffectiveness. Geoffrey Hills argues in favor of a more international or universal justice approach. For example, he suggests that consistent jurisprudence and outcomes for universally recognized crimes are desirable and, if implemented, could eventually bring the large powers into the orbit of international jurisdiction. However, the ICC cannot deliver such stability because it is based on complementing national courts on a discretionary basis.

The quest for justice is never-ending. Large and powerful States that intrude on their own citizens and on citizens of other countries are self-evidently destructive of justice. The ICC by its construction is an extension of States. It extends the ambit of international institutions that build upon the system of States. While I wish it well in checking the grave crimes it is now and will be adjudicating in the future, I do not endorse or support it in principle. I think it leads us astray. In my opinion, it is obvious that the path to greater justice is reduction of arbitrary State power accompanied by markets for judicial services. Accomplishing this will by no means be a cakewalk.

Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.

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