Freeland, Stephen --- "And Justic For All? The Politicisation of the International Criminal Court and the Issue of Impunity" [2002] HRightsDef 30; (2002) 11(3) Human Rights Defender 22

And Justice for All? The Politicisation of the International Criminal Court and the Issue of Impunity

Stephen Freeland

Stephen Freeland is a Lecturer in Law at the College of Law and Business School of Law, University of Western Sydney

On 1 July 2002, the Rome Statute of the International Criminal Court (Rome Statute) came into force, following the 60th ratification of the treaty. As a consequence, the first ever permanent International Criminal Court (ICC) came into existence. By the time of writing, the number of ratifications had increased to 82, including that of Australia, which decided to ratify the treaty in July notwithstanding the sometimes fierce debate that took place on the issue within the ranks of the Government parties.

A building to house the ICC has been identified and the first administrative officials have been appointed. The Assembly of State Parties to the Rome Statute met for the first time in September. It is anticipated that the Judges of the Court, as well as the Prosecutor, will be appointed in early 2003 and an organisation of lawyers who will practice before the Court, the International Criminal Bar, has also been created. All being well, the ICC will probably be fully operational and in a position to hear its first cases in the latter part of 2003.

The ICC will have jurisdiction in relation to the following crimes committed after 1 July 2002, either by a national of a Party to the Rome Statute or in the territory of a Party:

1.	Genocide
2.	Crimes Against Humanity
3.	War Crimes
4.	The (as yet undefined and highly controversial) crime of Aggression

Undoubtedly, the creation of the Court is a welcome and long overdue step along the path towards the establishment of an effective and credible set of enforcement mechanisms designed to deter and punish gross violations of Human Rights. Further, the evident political will of many States to allow for the establishment of a permanent supranational criminal tribunal and, perversely, even the staunch and very public opposition by the United States and some other countries, has meant that the issue of impunity is now firmly on the international agenda for ongoing discussion. For so many years after the Second World War, and particularly during the period of the Cold War, the ‘international community’ - perhaps an oxymoron in this context - had largely ignored the deaths of many millions of people as a result of flagrant breaches of fundamental Human Rights. An unforgivable era of unaccountability and impunity had to be broken.

Yet clearly this is really just the beginning. Despite the positive message that the establishment of such a court may send to some of the world’s political and military leaders – and this is of course to be welcomed – there is, unfortunately, much to lament about the restrictions placed upon the ICC’s jurisdictional competence. Both the terms of the Rome Statute and, even more worryingly, the efforts of the Security Council and individual States to further limit the ability of the Court to act in circumstances where it otherwise should, have meant that the ICC is quite clearly a highly politicised organ. It would of course be naïve to think that the establishment of such a court would not have significant political overtones; yet the spectre of Realpolitik has served to create a tribunal which may be ill-equipped to meet the challenges it is intended to defeat.

A fundamental theme under the Rome Statute is the notion of ‘complementarity’; in essence the Court is to complement rather than supersede national courts in the prosecution of individual perpetrators of these serious international crimes. This is unlike the competence of the existing ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda (both established under Security Council resolutions), which in effect have a ‘primacy’ over all national courts, and the recently agreed Special Court for Sierra Leone, which has primacy over Sierra Leone national courts. The ICC, on the other hand, can only admit cases where a State is either ‘unwilling or unable’ to genuinely investigate and/or prosecute alleged perpetrators. If the State is in the process of investigating and/or prosecuting the matter, or has decided not to prosecute the person concerned following an investigation, then the ICC is unable to act.

There is no indication as to the level of ‘investigation’ that is sufficient, nor how ‘unwillingness’ is to be determined, apart from general requirements that the State should be acting without unjustified delay and in an independent and impartial manner, and cannot attempt to ‘shield’ the alleged perpetrator. Whilst these sentiments are in theory entirely understandable, unless there is a clear situation where a State is acting (or not acting) disingenuously, it will be extremely difficult for the Court to ascertain whether this threshold has been breached. This is particularly the case since States are not under an obligation to provide information to the Court in order for it to make such a determination.

In the end, this may leave the Court in a difficult – and perhaps a ‘no-win’ – situation. It may be forced to form a view as to the actions of a State’s national prosecutorial and court system in the absence of full details. This will involve a complex political value judgment. One can imagine situations where the Court may be loathe to impugn a State’s actions in this way, particularly when that State has wide-ranging support from other countries. It may well be the case that the Court will only be in a practical position to make such a judgment when the weight of international community sentiment is such that the ‘offending’ State is without significant political support.

In these circumstances it is not difficult to envisage that the ICC may, under its current structure, become extremely ‘selective’ in the nationality of those that it will seek to prosecute.

The concept of complementarity was a necessary compromise without which the Rome Statute would never have been approved in the first place. Consequently, despite its negative consequences, it is something that we must live with, at least within the current climate of State sovereignty concerns. However, the attempts by the United States to further restrict the activities of the Court, and the support those efforts have been given (albeit not enthusiastically) by the Security Council, the European Union and individual States, are entirely unacceptable. The United States, a supporter of the ad hoc Tribunals, holds great fears of the possibility that the Court would undertake an unjustified and politicised prosecution against American nationals. As a result, it has imposed almost unprecedented levels of diplomatic pressure on other States to ensure that American military personnel would not fall within the scope of the ICC, even after having committed one of the crimes in the territory of a Party to the Rome Statute.

In July 2002, the Security Council resolved, after considerable horse-trading and under the threat of withdrawal by the United States from important United Nations peacekeeping operations, to suspend the jurisdiction of the ICC, for a renewable period of one year (and possibly longer), from investigating or prosecuting government officials or military personnel from non-State Parties involved in such operations. Since then, we have seen 14 individual countries – including Kuwait, Tajikistan, Romania East Timor and Israel – sign so-called ‘Article 98’ bilateral agreements with the United States, by which they have agreed not to surrender any American personnel on their territory to the Court. And very recently, at the pressing of the United Kingdom and Italy, the European Union has abandoned its firm resistance towards Article 98 agreements, primarily in the interests of trans-Atlantic relations. This leaves the way open for EU countries to also meet the requests of the United States. Australia has also been approached to agree to a similar arrangement, and both the Prime Minister and Foreign Minister have indicated that they are ‘sympathetic’ to the idea.

It is not clear how and why the protections afforded by the complementarity principle would not have sufficed to meet the concerns of the United States. That county’s failure to support the Court undoubtedly means that both Russia and China will also not ratify the Rome Statute within the foreseeable future. India remains outside the ICC party framework as does Israel and almost all of the Arab and Asian States. This is unacceptable since, having won the necessary sovereignty protections within the terms of the Rome Statute itself, it is surely incumbent on all States to demonstrate the necessary political will to support this first important step to counter impunity.

The Rome Statute provides for a Review Conference to be held in 2009, at which time the Parties will be able to revise the restrictions under which the Court will be operating. It is impossible to speculate what will happen between now and then; however it is highly likely that the functioning of the Court will lead to at least some degree of recrimination and disappointment. It is therefore important that States and NGOs remain vigilant and maintain the international community’s focus on what still needs to be done. It would be a tragedy if we regarded the establishment of the ICC in its current form and without the support of the world’s most powerful States as the culmination of the campaign to end impunity and strengthen international law enforcement of fundamental Human Rights. We cannot yet properly congratulate ourselves for a ‘job well done’.

It to be hoped that the international community will, over the next seven years, realise the need to provide the ICC with greater support and ‘teeth’. Many millions of potential victims will demand nothing less.