Blueprint for an Effective International Criminal Court
Cao Xun Dong ( ?????
student ID : s06093
Research Paper Superviser : Dr. Sekou Conde
Minzhu University of China
2006-2007 Academic Year
Can there be an effective international criminal court? The answer is yes, but only if the proponents of the court admit the limits of a legalistic model in addressing the problem of gross violations of human rights. An international court can be a significant instrument in a body that politicians search for the common good. This has been demonstrated over the years by the several international ad hoc tribunals that have played important roles in helping transitional societies achieve peace and democracy. It is no coincidence, however, that various political entities——nations, states within nations, municipalities, cantons, counties, etc.——do not have only a criminal court in charge of representing the common good. Beyond the things that such courts do very well (such as finding facts, rendering judgments in individual cases, and deterring crime by meting out justice), a criminal court is not well-equipped to account for the other aspects of the common good of the political entities.
A. Political Negotiations: prerequisites
Criminal law, which involves punishing people for violating civil norms, is justified by utilitarian theories, as well as a retributive theory which posits that punishment is justified because the wrongdoer is morally accused. Criminal penalties send utilitarian messages to other potential lawbreakers that society will not stand such activity and will give a penalty to lawbreakers. Moreover, if the criminal is removed from society, he or she will not be able to commit further criminal acts, at least not on the public. Finally, by giving education to criminals, they will be prepared to repay society as law-abiding citizens. In view of this, the utilitarian justifications for punishment can be seen as benefits to the general public.
Experience tells that citizens sometimes are willing to give up the traditional benefits that they may receive from criminal punishment of wrongdoers if the common good decides a different way. This is the case particularly when some higher truth or other goal is at stake. For example, in the United States, if a defendant is willing and the court approves, the state will often permit a defendant to plead to a lesser charge and save the state the time and expense of a trial. Similarly, a criminal defendant might be permitted to plead guilty to a lesser offense in exchange for information and testimony that would permit the authorities to arrest other more “dangerous” criminals. Thus, society is willing at times to sacrifice perfect utilitarian or retributive justice if a higher common good is served by the compromise. Society accepts compromises on criminal punishment as long as widely held norms of justice are not violated.
By punishing the guilty and not punishing the innocent, a society’s criminal law system realize societal values. This adds to the unity of society in most cases. It might even be said that society owes an obligation to the citizens to usually punish those who have committed bad acts. There are cases, however, where punishment of even a clearly guilty person might not promote societal unity. At these times, prosecutorial discretion, executive clemency, amnesty, and even jury nullification can do more to serve the common good than would punishment of the guilty. In such cases, members of the society are willing to trade the benefit that they might receive from such punishment for the common good.
Perhaps the most significant problem with the ICC is that it lacks a meaningful political check on its power. Political negotiations are essential to building a nation where the rule of law can be established and human rights can be respected. Those who argue that criminal prosecutions are alone sufficient to build such a society ignore real-world politics at the peril of further bloodshed, and forget the unhappy experiences with prosecutors freed from normal political processes. Furthermore, because the complementarity provisions of the Rome Statute are essentially an international “supremacy clause,” the ICC would not only make its decisions in a political vacuum, but it also could deny political efforts for reconciliation made by national or local polities. To shunt aside in every case the local statesmanship of a future Nelson Mandela in favor of criminal trials in The Hague is to reject what may well be the most effective path to peace in any given case. Former U.S. Secretary of State Henry Kissinger recently noted precisely this flaw in the ICC’s structure:
The advocates of universal jurisdiction argue that the state is the basic cause of war and cannot be trusted to deliver justice. If law replaced politics, peace and justice would prevail. But even a cursory examination of history shows that there is no evidence to support such a theory. The role of the statesman is to choose the best option when seeking to advance peace and justice, realizing that there is frequently a tension between the two and that any reconciliation is likely to be partial. [1]
The solution to this problem is to tie the exercise of the ICC’s jurisdiction to a political decision by an appropriate international body, preferably one which is representative of the international body politic. There is no such body in the world today, and there may never be. As the example of ad hoc human rights tribunals demonstrates, however, it is possible for the international community to unite behind prosecutions in appropriate cases, after frank political deliberations. Indeed, even without an ICC, a potential tyrant would be foolhardy to assume that he could commit gross violations of human rights with impunity, though this fact nonetheless seems to be precious little deterrent to the modern tyrant.
The international body best equipped to perform the political calculus in such cases is the United Nations Security Council, and it is no surprise that Henry Kissinger proposes that the Security Council establish an advisory organ or subcommittee to advise it regarding prosecutions for any systematic and gross violations of human rights. The Security Council, having decided that prosecution is appropriate, could define the scope of the prosecutions and refer the case to a body such as the ICC. The prosecutor then could exercise discretion in deciding whether or not to prosecute after an appropriate criminal investigation.
In such a scheme, the ICC might still be a standing international court, whose structure would be in place waiting for its jurisdiction to be invoked. By relying on the United Nations Security Council, the one international organ that history demonstrates is best (though far from perfectly) capable of making decisions to foster the international common good, the potential for the ICC to do more harm than good would be reduced greatly. Moreover, it is quite likely that, without such a political component, major nations will not join the Court or will refuse to comply with their obligations as signatories when and if the Court acts too aggressively in pursuing prosecutions--thus rendering the ICC impotent.
B. Subsidiarity, Not Complementarity
The second, related flaw in the Rome Statute has to do with the doctrine of complementarity. As discussed earlier, the ICC will not take a case unless the affected nation is unable or unwilling to prosecute the wrongdoer, but the ICC itself will be the sole arbiter of whether a nation is unable or unwilling to prosecute potential defendants--even if there has been a judicial or some other type of proceeding. Moreover, the ICC does not have to recognize amnesties granted by nations, even if they are part of a negotiated and delicately balanced political settlement. Simply put, the decision of whether to ignore proceedings or settlements at the national level resides solely with the ICC itself under the Rome Statute. The Statute contains no principles or guidelines for the exercise of this discretion (and no appellate process). Indeed, despite the assurances of some to the contrary, the Rome Statute seems to require prosecution regardless of national preferences. There is an alternative. The principle of subsidiarity teaches:
It is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them. [2]
The most fundamental facet of the theory is that it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community. Subsidiarity recognizes that the individual will not always be able to do for himself, but where that is true, the individual should be assisted by an intermediate association, such as a family, church, school, or union. Importantly, assistance should come from the intermediate association closest to the problem, with less involved and more detached associations only used when absolutely necessary.
Subsidiarity has been characterized as “neither a theological nor even really a philosophical principle, but a piece of congealed historical wisdom.”[3] By focusing explicitly on the common good, subsidiarity would require a more nuanced, comprehensive, [...]
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