Short Report on Wilton Park Conference WP661 TOWARDS GLOBAL JUSTICE: ACCOUNTABILITY AND THE INTERNATIONAL CRIMINAL COURT (ICC) Monday 4 Thursday 7 February 2002 Introduction 1. Over fifty years ago the Nuremberg tribunal established the concept of individual accountability for the worst offences against international humanitarian law. The second half of the twentieth century, contrary to the high expectations of 1945, witnessed an almost continuous succession of brutal civil or regional wars, involving gross abuses of human rights and international humanitarian law. The perpetrators had little to fear from judicial retribution -- international humanitarian law was largely declaratory and no international enforcement mechanism existed to ensure its observance. The sea-change in the attitude of the international community to impunity occurred only during the last two decades. With the end of the Cold War and the seismic shift in world affairs it triggered, governments have finally achieved a large measure of consensus on how to establish individual criminal responsibility at the international level, through the creation of the International Criminal Court (ICC) (although such a development did not occur without witnessing the bloody fragmentation of Yugoslavia and the genocide in Rwanda). The widespread support the Rome Statute of the International Criminal Court enjoys is demonstrated by the fact that no fewer than 139 states had signed the convention by December 2000. Over 52 states have now ratified it, 1 and there 1 As of 8 February 2002
are clear indications that the 60 ratifications required for its entry into force will be reached in a matter of months. The ICC will become reality during 2002. Such a prospect engenders hope and expectations; there is also a need to consider realistically what the ICC can deliver. The ICC and its consequences for international law and international relations 2. The impact of the ICC will be linked to the function and role of international law in the context of major international crises. The ICC represents, and is criticised by some for being, a merger of law and politics, having been born from a process negotiated under the umbrella of the United Nations (UN), which has in the past decade become increasingly involved in issues concerning the laws of war. Most provisions of the Rome Statute, for example its definition of crimes against humanity, are major contributions to the development of international law. Consequently, some fear that the ICC embodies the rapid onward march of international law, which will gradually limit the rights of state sovereignty, as the ICC expands, unchecked, the range of offences under its jurisdiction. They argue that the process by which the ICC was negotiated, including strong pressure exerted by non-governmental organisations (NGOs) and an undue haste in the adoption of the Rome Statute, led to the inclusion of unwise provisions and unfortunate compromises. Such criticisms are made by the US Administration, where concern is particularly acute about the Rome Statute's implications for the US s perceived right and duty to do what is necessary to maintain international order, and to defend itself. In rebuttal, many argue that the Statute does not involve changes in the law on international peace and security but rather reflects current institutional and other structures of power, as shown, for example, by the rules on the relationship between the ICC and the Security Council. Nor does it encroach on national sovereignty, because of the role States Parties will play in the management of the ICC and due to the principle of complementarity the Statute contains, whereby cases will be brought before the ICC only when national courts have been genuinely unable or unwilling to investigate and/or prosecute. 2 The responsibility for states to act at national level is stressed by supporters of the ICC 2 The ICC is only able to act where national systems do not investigate or prosecute, or where they are unable or unwilling genuinely to do so (Article 17 of the Rome Statute).
when addressing the fears of the US Administration that its own nationals will be answerable before an international tribunal in politically-motivated prosecutions. This said, the imperative that all states adhering to the ICC regime must ultimately submit themselves to international justice is critical to help to dispel the perception, firmly held by some, that the ICC will provide an opportunity for the developed world to dominate developing countries, whose national legal systems are more likely to be unable or unwilling to undertake successful prosecutions. The active engagement of NGOs with the ICC negotiating process may represent part of a growing trend of increasing civil society involvement in treaty-making, an activity which has traditionally been the preserve of states. Anticipating the ICC's functioning 3. Creating and operating a supra-national criminal justice system will not be easy and expectations must be realistic. It constitutes social intervention of the last resort, and as such shows that other avenues are bankrupt or have shortcomings. It cannot be expected to solve all problems; while it may act as a deterrent, there is no absolute deterrence, especially at the international level. Criminal sanction will contribute to building a culture of compliance with the law, but it will only be one tool in this endeavour. 4. The experiences of two ad hoc criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), testify to the need for the ICC to elaborate new rules for its own unique environment. Some argue that it cannot reproduce at international level all the standards and procedures pertaining at national level. For example, they claim that the requirements of an open court system -- transparency and public accountability -- will sometimes be difficult for the ICC to meet, if it needs to protect witnesses or use much information coming from intelligence sources. Others note the extensive provisions in the Statute to protect victims and witnesses without infringing the right to fair trial. Similarly, some argue that the principle of equality of arms between prosecution and accused, which derives from the domestic concept that the prosecution has the backing of the state, would be
difficult to apply at international level. For the ICC, the state may be supportive of the accused, impeding access to information sources and preventing or disrupting searches and arrests. Others argue that the resources of the ICC prosecutor would be greater than those of the defence. 5. A critical issue for the ICC, it is widely felt, will be how it handles its reliance on state cooperation. Since the ICC has no enforcement powers, what can be done in this respect? The ICC will need to develop a strategic view of how it will foster cooperation with concerned states, and how it will address non-compliance (in conjunction with the Assembly of States Parties and, as appropriate, with the Security Council). Some suggest that it will need to be opportunistic, seizing on occasions for action which, if handled well, could establish precedents. However, if the ICC is widely seen to be investigating a body of cases of obvious concern, and it is experiencing continuous obstruction from the relevant state in advancing the investigation, is international intervention acceptable in the last resort? While there is nothing in the Statute which authorises intervention in armed conflict, or in the internal affairs of any state, the question is one which will arise and require answering over time. In this connection, some are sceptical as to whether the ICC will be well-placed to make judgments when the possible use of military force is at issue, not least given the difficulty the concept of proportionality between military advantage and collateral civilian damage poses in legal terms; some argue that the ICC will, in these instances, need to refine the criminal standard of proof and the adversarial approach used in criminal procedure. They note that considerable discretion by judges will also be needed, and decisions taken on a case-by-case basis. It is suggested that some judges, as well as prosecutorial or investigative staff, should have military experience; alternatively, the ICC budget might be stretched to employ military consultants. 6. The prosecutor, (whose ability to obtain state cooperation is vital), is seen as the key to the effective functioning of the ICC. The prosecutorial independence and discretion provided in the Rome Statute generate further criticism by the ICC's opponents, who fear that the prosecutor may be influenced by political considerations. In response, even if it is seen as inevitable that politics will
surround the ICC's work, it is argued that the prosecutor's guidelines must be the law: whether the ICC has jurisdiction in the case; whether there is a reasonable prospect of conviction; and the merit of the case, the priority being to prosecute the most serious offences. One means proposed to assist the prosecutor in the exercise of discretion could be to establish an advisory board, although some consider that any such board must be within the office of the prosecutor to ensure independence. How actively the prosecutor's role will develop will depend in large measure on the manner in which cases are brought to it, whether through Security Council referrals, at the instigation of states, or at the prosecutor's own initiative. The speed of the prosecutor's intervention in cases, especially in on-the-spot investigations, is also a crucial factor in achieving effectiveness, both to deter to the committing of further offences and to maintain the freshness of evidence. Resources will also affect the prosecutor's role and effectiveness - will resources be sufficient to enable the investigation of all referred cases or will financial constraints act as a form of control? The ICC s financial independence is essential. To retain credibility, moreover, it is argued that the prosecutor will need to explain why no action is taken to prosecute in certain cases and demonstrate that this is not for political or financial reasons. 7. There is strong international opinion in favour of the ICC becoming operational (and being seen to work well) as quickly as possible. One way to facilitate this would be for States Parties, and others, to anticipate the likely areas of investigation of the ICC and to compile preliminary, or pre-investigation information for eventual use by the prosecutor's office. The proposal is based on the assumption that there will be no shortage of situations which could yield cases. However, concern is expressed by some that the ICC may face a dearth of cases, or that the gestation period between investigation and prosecution will be too long. Consequently, it is suggested that transferring cases currently before the two ad hoc tribunals would enable the ICC machinery to begin working promptly; however, there is no provision in the Rome Statute to enable this to happen and a seven-year interval is required after the ICC enters into force before its Statute may be amended.
8. Vital also to the credibility of the ICC are its judges, who need to be persons of integrity who command the respect of the international community. The nomination and selection of judges, a responsibility of the States Parties and a matter of considerable sensitivity, is thus of huge importance. To assist in this, some suggest, a provision of the Rome Statute (Article 36.4.c) could be interpreted to enable the formation of a committee of independent experts to act in an advisory capacity. Such a committee could, for example: consider whether candidates meet the minimum requirements for ICC judges; interview and otherwise evaluate the candidates, including through consultation with other expert third parties; and make recommendations on merit. Consideration should be given to obtaining fair representation between women and men, and to including experience from different legal systems. Potential judges should be from a variety of backgrounds, incorporating, for example: academic expertise, courtroom skills, criminal, human rights and humanitarian law experience, and familiarity with the military. Some are sceptical about the feasibility of creating an advisory committee of independent experts; such bodies are perceived by some governments as encroaching on their prerogatives in the election process. In practical terms, little time remains to advance the idea before the election of judges begins. 9. A broad consultation process for seeking nominations is desirable, and publicity should be given to the selection effort, through the media and NGOs, which will raise awareness about the ICC too. The accountability of judges is critical and a code of ethics to cover their conduct should be elaborated. A judicial council or complaints commission could supervise the enforcement of the code of ethics. Judges of the ICC should also undergo induction and on the bench training, including in cultural sensitivity. 10. Administrative responsibility in the ICC is split between its three organs, the prosecutor s office, judges and the registry, rather than being vested in the registry (as in the ad hoc tribunals), a cause of concern to some. Giving administrative functions to judges is seen as problematic since it could divert attention from their judicial duties, and judges are not necessarily trained in the management of large and complex organisations. Institutional friction may result. The ICC will also need
to build a large and specialised infrastructure: to deal with victims and witnesses; to network with relevant national agencies and, where these do not exist (as is often the case in post-conflict states) to create them from scratch. Potential witnesses will need support if they are to be brought to the ICC to testify. A structure of international organisations, governmental bodies and NGOs will have to be set up to deal with related issues, and relocation of witness agreements will have to be concluded with states. The question of the ICC's outreach also needs to be considered. The ICC's work will have to be accessible to a particular region or state if any perception of justice being done is to be conveyed. Basic public information services and sufficient facilities for the media are required. Outreach programmes will need to be devised to: translate the ICC's work into the local legal culture and politics; counter as necessary images of the ICC which may be created in state-controlled media. Establishing field offices may need to be considered, for liaising with witnesses, and for holding trials or pre-trial hearings away from the seat of the ICC. Such measures would not only promote outreach but could also prove to be cost-effective. Given the ICC's infrastructural needs, and the imperative for it to become operational in a short period of time, it is essential to start the recruitment of a highly competent, experienced and sufficiently senior staff. Some of the staff currently employed in the ad hoc tribunals should be considered in the ICC's recruitment drive. 11. In addition to ensuring the satisfactory establishment of the ICC's three organs, it is generally accepted that, for the court to function effectively, it will, like any other criminal court, also require a bar association to enable it to communicate with the defence counsel. This is particularly important as some lawyers will come from jurisdictions in conflict-ridden states unfamiliar with the ICC's proceedings. Some form of independent bar association will have to be set up in the context of the ICC. How this will be done will need careful consideration and negotiation, as national bar associations may not be inclined to give up their prerogatives to a new international body, and because certain practices which are considered ethical and even obligatory in some jurisdictions are prohibited in others. It is suggested that, following the principle of primacy of prosecution at the national level in the Rome Statute, an 'ICC bar association' would only assume responsibility, for
example for disciplining lawyers, when there is no effective alternative to deal with such matters at the national level. 12. Although some legal drafting was left unfinished when the Rome Statute was adopted, such as a definition of the crime of aggression, the future challenges to the ICC are likely to be of a political rather than legal nature. The question of amnesties is an example. Does the absence of a reference to domestic amnesties in the Statute prohibit the granting of these if they could serve the interests of reaching a peaceful settlement and national reconciliation? Some argue that this omission can be seen as an advantage, giving flexibility to the ICC to address different situations differently. Others note that amnesties for the crimes in the Rome Statute were prohibited under international law. Another question is whether the ICC would be more relevant in the contemporary world if it deals with cases of terrorism. It is generally argued that it would be unwise for the ICC to take on such a politically-charged issue at its inception, particularly given the current hostility of the US Administration to the court, although through a process of discussion among States Parties, and over time, it may be feasible for the ICC to address related cases. A jurisdictional challenge the ICC may face concerns the recent practice of national prosecutions of foreigners on the basis of universal jurisdiction for international crimes committed abroad, a development often promoted by NGOs. The ICC has no authority to request a national court to desist in undertaking a prosecution, so it is argued that, in this instance, the primacy of the domestic court will render the ICC ineffective. Some argue, however, that although there may continue to be an exercise of this use of national jurisdictions in the short-term (which could lead to competing extradition claims) such cases will eventually be brought under the ICC, particularly once the ICC has had opportunity to demonstrate its effectiveness. Impact of the ICC at national level 13. It is sometimes argued that the ICC, through its concept of complementarity, may have a more discernible and far-reaching impact in terms of its effect on domestic law and national capacity building than through its prosecutions at international level. Principal effects will include:
greater pressure on states to retain domestic control over prosecuting nationals charged with violating international humanitarian law (since they will be reluctant to admit to judicial inadequacies enabling transfer to the ICC); States may need to reform national criminal law to include genocide, crimes against humanity and war crimes in national law; States will need to ensure that their domestic judicial systems incorporate and adhere to principles of due process recognised in international law, in particular to the rights of the suspect (Article 55), thus leading to a greater dissemination of information on these standards and greater awareness of the need for compliance with them; greater clarity on which extra-judicial proceedings are acceptable under domestic law, through determining when there is an unwillingness to prosecute, for example following testimony before a truth commission; ensuring an effective monitoring of and support for states' judicial processes, without which the ICC could not determine if the domestic courts are "unwilling" or "unable" to conduct trials; and the need to adopt effective implementing legislation at national level to ensure that a state is in a position to cooperate and comply fully with the ICC in its investigation and prosecution of crimes, and the enforcement of ICC verdicts. 14. It was widely felt that the importance of implementing legislation cannot be underestimated, nor the possible difficulties or intricacies it may involve. More can be done to help states examine their domestic legislation to ensure compliance with the Rome Statute, not least through technical assistance projects and 'North- South' partnerships. Information on different countries' implementing legislation could be made available on the internet. 3 Parliamentarians have a particular role to play in the adoption of implementing legislation, and organisations such as Parliamentarians for Global Action should be brought into discussions. 3 See the Council of Europe s website for information on implementing legislation in the organisation s
15. Defining the terms "unwilling" and "unable" (Article 17 of the Statute), which govern the jurisdiction of the ICC, had been the outcome of a fragile compromise which, some suggest, should be treated with great caution. Others believe that the ambiguity in the Statute could be addressed if a third party 'Advisory Council' of experts could be established to assess whether a state has the capacity to undertake national prosecutions. Caution was expressed about bringing Article 17 provisions into play, the guiding principle being that the ICC should endeavour to retain the integrity of governments judicial systems. Governments constitute the court's national partners and their cooperation and compliance are integral to its functioning. An assessment that a government is unwilling to prosecute should not be based on lack of action in a single case but on a systematic pattern of judicial inaction in pertinent cases. It is also widely felt that when a judicial system is considered "unable" to conduct trials, assistance and training should be provided by the international community to try to overcome the shortcomings. Some argue that money is better spent on building national legal capacity than on international tribunals. Some expressed concern about whether assistance in judicial reform and the training of judges is being undertaken through the appropriate bodies, such as the World Bank and the United Nations Development Programme, and is conducted in an effective manner. The ICC and transitional justice 16. While the ICC should not be seen as a universal panacea and unrealistic expectations must not be raised about its functioning, some believe that other remedies should be entertained during periods of transitional or post-conflict justice, to prevent the ICC becoming overburdened. The ICC will not be able to deal with large numbers of investigations. It is also argued that a multi-faceted and integrated approach is most appropriate in post-conflict situations, since complex problems and rifts in society are often resistant to simple, one-step solutions. Some maintain that law should be distinct from political processes, and that justice and accountability should not be mixed with forgiveness and reconciliation. One approach which, it is argued, is not given sufficient attention is the use of non-criminal sanctions, which are often imposed for a specified duration and involve exclusion from employment or the holding of public office.
Through related screening programmes, large numbers of people can be handled relatively quickly, with less cost financially and in human resources. Non-criminal sanctions, it is also suggested, permit a measured response, allowing the less culpable to avoid trials or prison. Attracting less public attention, however, such sanctions are not generally subjected to public scrutiny and they may not provide the same due process guarantees. They may also be used for purely political purposes or to pursue vendettas; it is necessary therefore to develop proper standards for the use of non-criminal sanctions. 17. Although truth commissions were once regarded as a positive element in the movement to ensure greater accountability, they are now often perceived as weakening the drive against impunity and as possibly complicating the work of international tribunals. For example, it is feared by some they may: duplicate investigations; provide a potential for inconsistent statements; confuse victims; and compete for international resources. Others argue, however, that they are complementary to the work of tribunals, dealing for example with the 'problem of passivity', when war crimes are committed in the name of a nation. In such circumstances, which lie outside the scope of individual criminal responsibility, truth commissions can attribute different levels of culpability and probe the role of entire sectors of society - the media, church or judiciary, for example. Truth commissions may also carry forward the process of reconciliation, by looking deeper and wider into the factors that made mass abuses possible and by considering ways to build a community in which the likelihood of their recurrence can be minimised or prevented. The ICC: future prospects and priorities 18. Several measures need to be taken during 2002 to ensure that the ICC continues to command the broadest support and that adequate preparations are taken to ensure its prompt and effective entry into force. A major information campaign needs to be undertaken, capitalising on the current high profile of the court deriving from the momentum of ratifications and the concrete work of the ad hoc tribunals, to explain what will happen and what can be expected from it. The continuing international preparatory meetings should be well supported by
countries from all parts of the globe and it must be made to appear politically costly to stay outside of this process. Those states which have ratified the Rome Statute should not become complacent, but need to examine what more should be done at national level, for example in signing agreements on immunities or on the enforcement of sentences in national prisons. Based on the experience of the ad hoc tribunals, the ICC must invest in the right priorities from the start, including in people and in modern technology, and in providing for the most efficient storage and retrieval of information. A practical approach needs to be adopted to ensure adequate planning, with mutual coordination and support between States Parties and the Dutch Government which is host to the court. More specifically, the following need to be addressed: the target number of additional ratifications should be much higher than the 60 required for the entry into force of the Rome Statute; to demonstrate political support for the ICC, the aim should be to obtain 100 or more, through initiatives to reach those states which are realistically most likely to ratify. Governments and NGOs can work together in this respect, defining strategies and identifying the real issues that prevent ratification and how these may be overcome (for example, whether the constitutional provisions of some countries prevent the extradition of its nationals; if there is fear of the legal and penal system being subjected to international scrutiny which may reveal shortcomings in due process and the treatment of prisoners, etc.). The message of the ICC should be geared to making it clear that no democratic government has anything to fear from it, and that the court will not simply be punitive but will contribute towards peace, security, stability and democracy. Governments must take the initiative in making démarches with other governments, both to encourage ratification and to counter any obstruction or intimidation from some governments, such as the US Administration, which are hostile to the ICC. Civil society at national level, including parliamentarians, bar associations and law faculties, needs to be involved in ratification endeavours and the fruitful relationship of coordination and mutual support established with the International NGO Coalition for the ICC be continued;
the international community should remain engaged, as part of a long-term strategy, in efforts to bring the US Administration to accept the Rome Statute, and to maintain mutual support and close cooperation with those sectors of US society which are supportive of the ICC; such an approach has been successful in achieving US ratification of other international treaties; attention should also be paid to dialogue with China on the ICC, and consistent efforts should be made by governments supportive of the ICC and by civil society to discuss the court with governments of states from regions which do not feature among States Parties to the Rome Statute (in particular in Asia and the Middle East) and the reasons for their lack of enthusiasm. The successful campaign to obtain universal ratification of the Convention on the Rights of the Child is cited as a model to follow in this respect; the assistance of donor countries will be needed to help compensate for a lack of human and financial resources, and capacity, in some countries, which are willing, but unable, to comply with the requirements of the Rome Statute; there is a need to consolidate the basis of the ICC and it is important not to require too much of it at the outset; the ICC needs to be well integrated into the legal and political realities of the twenty-first century. It will have to adapt to its political and legal environment, and the latter will likewise have to adapt to the ICC. Isobelle Jaques Associate Director February 2002
Wilton Park Reports are brief summaries of the main points and conclusions of conferences. The reports reflect rapporteurs personal interpretations of the proceedings - as such they do not constitute any institutional policy of Wilton Park nor do they necessarily represent the views of rapporteurs.