Paper on which the lecture delivered by Ms Booth QC was based
"The International Criminal Court and Our Hopes for International
Criminal Justice - Some Thoughts and Reflections"
16 April 2003
Queen's Hall, Parliament House, Melbourne
Introduction
It is both a privilege and an honour to address you today. I am especially
excited to be involved in a discussion about prospects and issues for
the International Criminal Court. This is an opportune time for such
a discussion, given that, as you know, the Court was inaugurated last
month. The Rome Statute of the ICC has its flaws - the nature of the
drafting process and the political issues at stake ensured that - but
we have now reached a stage where the principle of individual criminal
liability is established for those responsible for the most serious
crimes, and where an institution has been established - on a permanent
basis - to ensure the punishment of such individuals. The Court, no
doubt, will serve as a painful reminder of the atrocities of the past
century and the level to which humanity can stoop. I say nothing new
when I tell you that it appears we are doomed to repeat history. International
criminal law is testimony to that fact. As Judge Richard Goldstone,
former Chief Prosecutor at the Hague Tribunals has wryly commented,
the hope of "never again" so often becomes the reality of
again and again'. (1) But at the same time I am convinced that the International
Criminal Court, with independent prosecutors putting tyrants and torturers
in the dock before independent judges, reflects a post-war aspiration
come true. My discussion with you today flows from the conviction that
the International Criminal Court is our best response to the atrocities
which bedevil our claims to 'humanity'.
Aspirations to establish a permanent international criminal court can
be traced back to shortly after the Second World War and the adoption
by the newly created United Nations, on 9 December 1948, of a resolution
mandating the International Law Commission to begin work on the draft
statute of an international criminal court. (2) In the climate of the
Cold War, little was done to take the project forward, and the idea
of an international criminal court was revivified only in the 1980's
with a proposal by Latin American States, led by Trinidad and Tobago,
who envisaged such a court as their last resort to prosecute international
drug-traffickers. (3) The International Law Commission was thereafter
directed by the General Assembly of the United Nations to consider the
drafting of a statute of an international criminal court. The early
1990's saw the Commission prepare a draft statute for such a court and
by 1994 a formal Draft Statute for an International Criminal Tribunal
was adopted by the ILC and forwarded to the General Assembly for consideration.
(4) During the time that the Commission was preparing the Draft Statute,
events compelled the creation of a court on an ad hoc basis to respond
to the atrocities that were being committed in the former Yugoslavia.
That tribunal, the International Criminal Tribunal for the Former Yugoslavia,
was established by the Security Council in 1993 and mandated to prosecute
persons responsible for serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1991.
(5) Then, in November 1994, and acting on a request from Rwanda, the
Security Council voted to create a second ad hoc tribunal, charged with
the prosecution of genocide and other serious violations of international
humanitarian law committed in Rwanda and in neighbouring countries during
the year 1994. (6)
The Rwanda and Yugoslav Tribunals therefore fuelled the widespread
belief that a permanent international criminal court was desirable and
practical. The ICTY Statute, for example, influenced the draft Statute
that the ILC was busy drawing up in the early 1990's. By the time delegates
convened in Rome to draft a statute for a permanent international criminal
court, the Tribunals could provide a reassuring model of what such a
court might look like. These two Tribunals - the first international
criminal tribunals since Nuremberg - are close relatives, sharing virtually
identical statutes, as well as the same Prosecutor and Appeals Chamber.
Most significantly, the tribunals stand together as a working model
of international criminal justice. This model unpacked has certain defining
characteristics which draw their inspiration from the rule of law: an
international criminal forum applying rules of international law, staffed
by independent prosecutors and judges, holding persons individually
responsible for crimes against humanity and war crimes, after allowing
them a fair trial. In addition to the example which the Tribunals have
provided of working criminal justice, the innovative jurisprudence that
they have produced - such as the progressive view that crimes against
humanity could be committed in peacetime, (7) and the finding that war
crimes could be committed during an internal armed conflict (8) - fed
into the debates at Rome and eventually came to be reflected in the
Rome Statute. (9)
The Statute of the International Criminal Court was adopted on the
17th of July 1998 by an overwhelming majority of the States attending
the Rome Conference. To date, the Rome Statute has been signed by 139
States and 89 States have ratified it. One significant absentee as a
ratifier is the United States. It is notable that within just four years
the treaty has achieved the 60 required ratifications, far sooner than
was generally expected. The Statute entered into force last year on
1 July 2002, at which time the Court's jurisdiction over genocide, war
crimes and crimes against humanity took effect. The judges for the Court
were chosen earlier this year in February, and were sworn in on 11 March
2002 at the inaugural session of the Court in The Hague. All of the
senior elected officials of the Court should be in place and ready to
take up their tasks by the summer of 2003. I need hardly mention that
the opposition to the Court displayed by the United States - starting
with its decision to oppose the adoption of the Statute at Rome and
now continuing with its campaign to sign 'impunity' agreements with
member states - has dampened the excitement that goes along with these
developments. With or without the involvement of that country, however,
the Court will be up and running within the next year. .
What are its prospects? The answer to that question might be found,
at least partly, in the experience of the ICTY and the ICTR. So, by
reference to the experience of the ICTY and the ICTR, I should like
to address the prospects of the ICC in relation to three issues: first,
the prospects in relation to the legitimacy and credibility of the Court;
secondly, the prospects insofar as the Court's functions are concerned,
and thirdly, the prospects for the Court as a truly 'international'
institution.
Prospects for credibility and legitimacy: the International Criminal
Court and Women
The prospects for an effective, legitimate and credible international
court depend, to a very great extent, on the composition of its bench.
It is of singular importance that an international court be composed
of judges with the most appropriate qualifications. That means, amongst
other points, that there be representation of the principal legal systems
and appropriate geographical representation, and that there be an appropriate
gender balance.
The recent election of judges to the International Criminal Court shows
that the international status quo is changing. Elections took place
in February 2003 in what turned out to be an unprecedented event. Apart
from the utmost importance of the event for the Court - for its launching,
credibility, and work - in the panoply of international courts and tribunals,
the election was not business as usual.
ICC member states were faced with a new type of voting procedure. All
international courts and tribunals make requirements for representation
among its judges. For example, to facilitate the international character
of the courts, and their ultimate legitimacy, all their statutes require
that no two judges can be of the same nationality, and furthermore,
they call for equal geographical representation and/or representation
of the principal legal systems of the world. However, in addition to
all these requirements, the Rome Statute sets out further requirements,
not previously seen. To ensure that the court would not only be equipped
with academics and former diplomats, a common background of other international
judges, the Rome Statute requires that at least half of the judges come
from the courtrooms, i.e., with experience in criminal law and procedure
(Article 36(5)). Furthermore, the Rome Statute stipulates that in the
selection of judges, states parties shall take into account the need
for, within the membership of the Court, a fair representation of female
and male judges (Article 36(8)(a)(iii)), and to include judges with
legal expertise on specific issues, including violence against women
and children (Article 36(8)(b)).
The nomination period for election of judges to the International Criminal
Court was opened on September 9,2002 and closed on November 30, 2002.
By the closing date, 45 nominations were received - among them 35 male
and 10 female candidates. A minimum benchmark, which had been set for
each group, was met, including the benchmark of at least 10 female candidates,
and extension of the nomination period was not necessary.
The election of judges took place in New York between February 3-7,
2003. Late in the night of the last day of the session (9:30 PM), just
short of the midnight deadline, following 33 rounds of voting over four
days, the first bench of the International Criminal Court had been elected.
Among the judges, I am extremely happy to announce, are seven women,
a new record among international courts and tribunals. Furthermore,
among the 18 elected judges, three are from the group of African states,
three are from the group of Asian states, one is from the group of Eastern
European states, four are from the group of Latin American and Caribbean
states, and seven from the group of Western Europe and Other states.
As I mentioned earlier, the judges were sworn in at a ceremony in The
Hague just over a month ago, on March 11, 2003.
Never before has an election to an international court been followed
as closely. Of particular importance, civil society was extremely active,
calling for a transparent process, and a selection based on the merits
of candidates, rather than of political considerations.
Among the advocacy, the campaign for fair representation of female
and male judges was particularly successful. The inclusion of the requirement
in the Rome Statute, and implementation rules, provided an incentive
for states to propose more women candidates, as the high number of nominated
women - compared to other elections - demonstrates. Having seven women
among the elected judges at this important time in the Court's life
is truly a great success, an important milestone for its legitimacy
and acceptance.
It is also an important step forward for the international judiciary
more generally. For far too long the composition of international courts
has been overwhelmingly male, suggesting that the selection process
operates within unacceptable limits. A study prepared in 2001 for the
Project on International Courts and Tribunals shows that of 153 judges
attached to the nine principal international courts, just 18 were women.(10)
This is partly because women are under-represented as judges in most
national legal systems, as well as under-represented at the international
level. However, it is not credible to suggest that under-representation
is due to a dearth of suitably qualified candidates. Other factors include
the selection process itself with the lack of priority that States attach
to the issue and persistent ideas about the nature of suitable candidates.
Many States, for instance, persist in promoting a particular type of
candidate - one with a background in academia, diplomacy and the International
Law Commission - to which women are less likely to conform.
The election of 7 women judges to the International Criminal Court,
under the strictest conditions of openness and transparency, shows that
States are finally taking seriously the idea of a 'legitimate' international
judiciary. It is crucial that international justice be seen to be fair
and representative of international society as a whole. The Rome Statute
has thankfully set a new standard among international courts, which
for too long have tolerated an under-representation, or all too often
- absence, of female judges, and the success of the ICC in this matter
will hopefully be a model for a new order.
The importance of female appointees to the Court is reinforced by the
attention given by the ICC Statute to women's issues, as compared with
the very limited concern that women's issues have received in international
criminal law in the past.(11) In the field of armed conflict history
is replete with examples of women being targeted as victims of sexual
assault as part of a policy of war. Rape and other acts of sexual violence
have long been utilised as instruments of warfare, used not only as
an attack on the individual victim but also as a means to 'humiliate,
shame, degrade and terrify the entire ... group'. (12) These victims
have been let down when it has come to the prevention and prosecution
of these offences, largely because sexual violence has been regarded
as an accepted concomitant of war, even if it was not explicitly condoned.
The story is told of the Byzantine emperor Alexius who, in appealing
for recruits during the First Crusade, extolled the beauty of Greek
women as an incentive to go to war, an idea which later came to be known
as that of 'booty and beauty', and which was associated with success
in battle. More recently, General Patton's writings about the Second
World War in his book entitled War as I Knew It, reflect the 'inevitability'
of rape in times of war. Patton remembers that in spite of his most
diligent efforts, 'there would unquestionably be some raping', and that
he demanded the details as early as possible so that the offenders could
be appropriately dealt with. (13)
And of course, besides the concomitant inevitability of sexual violence,
rape has historically served a tactical function in war as an expression
of the totality of victory - a sort of 'sexual coup de grâce'.
As the events in Rwanda and the former Yugoslavia so horribly remind
us, this function of sexual aggression against women often serves as
a grotesque public display of domination where the 'rape of the woman's
body symbolically represents the rape of the community itself'. (14)
At the international level it was only in relatively recent times that
sexual violence against women in armed conflict came to be regarded
as an important issue in serious need of redress. Since 1990 international
criminal law has made greater progress on women's issues than during
any other time in recorded history. The Rome Statute both exemplifies
the progress thus far and hints at the future contribution that the
Court can make to the attainment of justice for women. The Statute allows
for prosecution of a wide range of gender-based or sex-based crimes,
provides certain protections to victims of these crimes, and calls for
the inclusion of women in the different Organs of the Court. The inclusion
of these gender provisions in the Rome Statute clearly did not occur
in a vacuum. The fact that the Statute is progressive with regard to
women's issues is in no small measure due to the struggle of civil society
and the women's human rights movement, including in the Rome negotiations.
Furthermore, by the time the delegates convened in Rome to draft the
Statute, they had the benefit of drawing on the jurisprudence that the
ICTY and the ICTR had developed as regards the substantive elements
of gender and sex crimes, as well as the Tribunals' experience in the
investigation, prosecution, and adjudication of such crimes.
As we reflect on the momentous appointment of seven female judges to the
ICC, one of the most important lessons we can draw from the ICTY and ICTR
is that there are advantages that these women judges will bring to the
International Criminal Court when it comes to the prosecution of gender-based
and sex-based crimes. The UN Secretary General's Report that accompanied
the Statute of the ICTY already recognised as much when it provided that,
given the nature of the crimes committed and the sensitivities of victims
of rape and sexual assault, due consideration needed to be given to the
employment of qualified women to that Tribunals' staff. (15) And as an
example of the contribution that women judges have made in cases involving
sexual violence, I should like now to consider the decision of the Rwanda
Tribunal in the Akayesu case. (16)
Akayesu was the first case heard before the Rwanda Tribunal, and is
heralded today as possibly 'the most important decision rendered thus
far in the history of women's jurisprudence'. (17) Not only was it the
first international war crimes trial in history to try and convict a
defendant for genocide, it was also the first judgment in which an accused
has been found guilty of genocide for crimes which expressly included
sexualised violence, and the first time that an accused has been found
guilty of rape as a crime against humanity. But the obvious contribution
this judgment makes to the advancement of gender issues might not have
come about were it not for the intervention of Judge Pillay, a South
African Indian, and the only female judge on the Rwandan tribunal at
the time.
It was February 1997 and the trial had just begun. Jean-Paul Akayesu
was in the dock. He had been charged with giving orders for, and participating
in, crimes against humanity committed at the Taba Commune. Surprisingly,
given what we now know of the Rwandan situation, no charges or evidence
of rape were initially brought at the trial, with the prosecutor claiming
that it was impossible to document rape because women would not talk
about it.(18) However, Judge Pillay delicately pursued a line of inquiry
with two women - called by the prosecutor to testify to other crimes
- as to whether rape had occurred in the Commune. The first witness
explained how she had fled her village before the slaughter began and
had managed to hide in a tree where she stayed for several days. After
deciding it was safe, she climbed down to discover that only her 6-year-old
daughter had survived a massacre in which the rest of her family was
killed. Together they tried to escape the area but were caught by Hutus
and her daughter gang-raped. Her sworn statement taken before the trial
mirrored this evidence given in court about the murders, but was silent
about the details of her daughter's rape, apparently because the investigators
had not asked her about rape. After further careful examination by Judge
Pillay, the witness also testified that she had heard that young girls
were raped at the Taba Commune where Akayesu was in charge. The second
witness confirmed this. She testified that she had been taken into custody
and held at the Bureau where Akayesu had stood and watched as girls
were dragged into the compound and repeatedly raped by armed militia.
Commenting on this situation, Judge Pillay said:
'We have to try a case before us where this person [Akayesu] has not
been specifically charged with rape. We're hearing the evidence, but
the defence counsel has not cross-examined the witnesses who gave
testimony of sexual violence, because it is not in the indictment.
I'm extremely dismayed that we're hearing evidence of rape and sexual
violence against women and children, yet it is not in the indictments
because the witnesses were never asked about it.' (19)
The consequence was that in June 1997 the indictment was amended by
the Prosecutor to add charges of sexual violence. But many agree that
such additional charges would not have come about had it not been for
the instrumental role Judge Pillay played in questioning witnesses and
evoking testimony of gross sexual violence. (20) When the trial resumed,
extensive testimony concerning rape and other forms of sexual violence
was admitted into evidence - evidence that was used to establish that
sexual violence was an integral part of the genocide committed during
the Rwandan conflict. (21) The Akayesu matter stands out, therefore,
as a reminder that when it comes to the issue of composition of international
criminal courts, the ultimate beneficiaries of a 'fair representation
of female judges' on the bench are the victims of sexual violence themselves.
In relation then to the specific nature of sex-based and gender-based
offences in the Rome Statute, the 'fair representation' of female judges
goes beyond the issue of gender equality. The lessons from the Rwanda
and Yugoslavia Tribunals make it clear that the presence of female judges,
as well as of women in senior positions in the Prosecutor's office,
contributes significantly to the effective prosecution of sexual violence
against women. As Judge Pillay has recently stressed, in this new field
of international criminal justice, '[w]ho interprets the law is at least
as important as who makes the law, if not more so.' (22) The member
states that were deciding on the appointment of judges to the ICC have,
I am happy to say, taken Judge Pillay seriously. As many of you will
know, Judge Pillay is one of the seven women who were sworn in last
month as judges of the International Criminal Court.
Prospects for criminal justice - what role for the International
Criminal Court?
Naturally, the question of justice for women in the international criminal
law field is only a small part of a much larger question, namely, what
do we understand by the phrase 'international criminal justice' itself?
In relation to the ICC, allow me now to turn away from the specific
focus of justice for women, and to consider some of the functions we
expect the Court to perform, as well as to assess its prospects in relation
to those functions.
The experience of The Hague Tribunals, and Nuremberg before that, shows
that the ICC will have an effect beyond the trials themselves, and significance
beyond traditional conceptions of justice. While one leading commentator
in the field rightly reminds us that 'it is important to be modest about
the potential of war crimes trials and international criminal law generally',
(23) modesty or realism when it comes to the International Criminal
Court need not be cynicism
The International Criminal Court as public demonstration of justice
The International Criminal Court is a call to responsibility for persons
guilty of 'the most serious crimes of concern to the international community
as a whole'. (24) In this respect it takes seriously the words of Justice
Robert Jackson, Chief Prosecutor at Nuremberg, who famously said that
letting major war criminals live undisturbed to write their 'memoirs'
in peace 'would mock the dead and make cynics of the living'. (25) Perhaps
the function of a trial in the International Criminal Court is thus
first and foremost a proclamation that certain conduct is unacceptable
to the world community. That may sound like an obvious statement, but
it is not one which international law has always embraced. While war
crimes are committed every day and whole races have been defined by
their experience of genocide or crimes against humanity, international
laws designed to punish these acts have only been invoked when there
has existed 'an unusually propitious constellation of political factors'.
(26) In the 20th century such a constellation of factors led only to
trials at Nuremberg and Tokyo after WWII, and in the 1990's, to the
creation of The Hague Tribunals - a selective outpouring of indignation
at best, and an insidious message at the international level that to
a large degree war crimes and crimes against humanity are followed by
impunity.
The International Criminal Court presents itself as the mechanism to
cure this defect in the international legal system by providing a public
demonstration of justice. The act of punishing particular individuals
- whether the leaders, or star generals, or foot soldiers - becomes
an instrument through which individual accountability for massive human
rights violations is increasingly internalised as part of the fabric
of our international society. At the same time, it is a method by which
we put a stop to the culture of impunity that has taken hold at the
international level. Former Secretary of State Warren Christopher suggested
in the context of the Balkan crisis that '[b]old tyrants and fearful
minorities are watching to see whether ethnic cleansing is a policy
the world will tolerate.' To him, '[i]f we hope to promote the spread
of freedom, or we hope to encourage the emergence of peaceful, multi-ethnic
democracies, our answers must be a resounding "no".(27) The
ICC, building on the work done by The Hague Tribunals, is the means
by which a resounding 'no' is now possible in respect of every crime
set out in the Rome Statute. In that regard, it is of singular importance
to note that no one - not even a serving head of state - will be able
to claim immunity from the jurisdiction of the Court.
Upholding the rule of law - the creation of order
Besides the moral condemnation of these crimes at the international
level, the ICC will serve a second, and vital, purpose, namely, upholding
the rule of law. To respond to mass atrocity with legal prosecution
is to exact retribution by embracing legal order. The retributive theme
was evident most clearly in the Allies' prosecution of Nazis at Nuremberg
after affirming, earlier in the war, their commitment to prosecute the
war 'criminals' for their 'acts of savagery'. (28) In the closing days
of WWII it was far from clear that the Allies would carry through with
this legal commitment; the British Prime Minister, for example, is widely
reported as having favoured the summary execution of a dozen or so leading
members of the Nazi hierarchy. However, in the end, Nuremberg's legacy
is that of legal retribution - of staying the hand of vengeance and
of ceding 'Power ... to Reason'. (29)
Is retribution in the classic sense what the International Criminal
Court is meant to achieve? In part, the answer is 'yes', as evidenced
by the Preamble to the Rome Statute which proclaims that 'the most serious
crimes of concern to the international community as a whole must not
go unpunished and that their effective prosecution must be ensured'.
Of course, retribution as a motivating force comes with its own problems.
One of these problems is that a war crimes trial is an exercise in partial
justice to the extent that it reminds us that the majority of war crimes
go unpunished. (30) This, many of you will recall, was a criticism in
particular of the Yugoslavia Tribunal's decision to prosecute Dusko
Tadic - a mere foot soldier in the events of the Balkan crisis - simply
because it did not have custody of a higher ranking, more significant
figure. It was argued that there were hundreds more like Tadic, and
that there was little point in convicting one among them in what seemed
to have been a mere lottery. We can expect that the International Criminal
Court will face similar challenges if 'situations', involving mass atrocities,
are referred to it for prosecution. However, given the nature of mass
atrocities such as those committed in Rwanda and Yugoslavia, it will
be nearly impossible for the Prosecutor to avoid making broader strategic
choices when it comes to deciding whom to prosecute. We should draw
some solace, I would suggest, from the fact that in a world in which
a multitude of people may have become embroiled in war crimes, the punishment
of each and every offender is not necessary to achieve respect for the
rule of law, or to declare our disgust at the acts committed.
Moreover, it is important to remember that the role of the ICC will
be complementary to national courts. Under the Rome Statute's 'complementarity
principle' national judicial systems of states parties will have the
first bite at the cherry in respect of any investigation which affects
their territory or their nationals. The principle of complementarity
ensures that the ICC operates as a system of international criminal
justice which buttresses the national justice systems of states parties.
(31) Indeed, the principle proceeds from the belief that national courts
should be the first to act. It was written in relation to the experience
at Nuremberg that, '[t]he purpose was not to punish all cases of criminal
guilt ... . The exemplary punishments served the purpose of restoring
the legal order, that is of reassuring the whole community that what
they had witnessed for so many years was criminal behaviour'. (32) Because
of the ICC's system of complementarity we can therefore expect national
criminal justice to play an important role in assisting the ICC to provide
'exemplary punishments' which will serve to restore the international
legal order.
Memory against forgetting (33) - The ICC as truth-teller
The third function of an ICC trial - and closely aligned with the value
of upholding the rule of law - is the opportunity it creates for truth
telling. Truth, after all, is the cornerstone of the rule of law. Two
important points, I think, need to be kept in mind. The first is that
international criminal trials have a commemorative potential; they can
build an objective and impartial record of events. (34) This was true
of Nuremberg, and it is true also in respect of the current trials in
The Hague. Naturally, we should recognise the tension between the production
of history and the task of conducting a criminal trial. A criminal trial
with its elaborate rules regarding relevance and inadmissibility of
evidence as well as its focus on the accused in court means that it
can never provide a definitive and comprehensive record of history.
The ICC is able to provide a coherent and judicially manageable account
of tragic events, a 'judicial truth', if you will. But the painting
of the fuller picture of history, through local initiatives such as
truth commissions based on popular participation, must be left to those
affected by the crimes. (35) That having been said, we can rest assured
that the materials collected by the ICC which have passed its strict
rules of admissibility of evidence can contribute to the creation of
objective accounts of events which will play an important role in fighting
forgetting.
The second important point is this: proceedings before the ICC have
the potential of countering the attribution of collective responsibility
for acts committed by individuals. Richard Goldstone put it well when
commenting on the emotive photographs - one of which is printed on the
flyer for these lectures - of the accused in the dock at Nuremberg.
He said that 'one sees a group of criminals. One does not see a group
of representatives of the German people - the people who produced Goethe
or Heine or Beethoven'; as he put it: '[t]he Nuremberg Trials were a
meaningful instrument for avoiding the guilt of the Nazis being ascribed
to the whole German people'. (36) That this is an important function
for the ICC can be seen from the experience of the ethnic violence in
Rwanda and Yugoslavia. The truth telling of The Hague Tribunals has
been essential in the promotion of reconciliation by individualising
the guilt of hateful leaders and disabusing people of the myth that
adversary ethnic groups bear collective responsibility for crimes.
The International International Criminal Court
Thus far I have considered some of the functions of the ICC in its
pursuit of 'international criminal justice'. I would like to conclude
this lecture by focusing on the international aspirations of the ICC
when it comes to criminal justice.
The idea of an international criminal law - built as it is on an underlying
system of shared social ethics - can be considered strangely inappropriate,
given that the international regime has no central sovereign and is
morally pluralistic. (37)
This conceptual difficulty associated with international criminality
has been overcome, however, by endorsing the idea that there is an international
social system which is realised in a number of ways, including the very
notion of an International Criminal Court. The second half of the twentieth
century has seen the strengthening of human rights and the humanitarian
law of war and the growing sense that because individuals live under
the international legal system, they must necessarily have rights and
obligations flowing from it. The fact that delegates at Rome were able
to come together and finalise the ICC Statute is evidence of the existence
of a social system built on universal respect for the idea of human
rights - a system which denounces the most serious war crimes and crimes
against humanity because of a recognition that tolerating such atrocities
diminishes and threatens everyone.
The prospects for the ICC as a protectorate of the ideals of the international
community as a whole become difficult to imagine, however, when some
States elect to exclude themselves from that vision. This is particularly
true when those States are powerful, and strikingly so when such powerful
States, like the United States, are traditionally associated with the
very values the ICC seeks to endorse.
From its earliest beginnings, an important element of the US conception
of its own national interest has been the development and maintenance
of an international rule of law. The importance the Framers gave to
international law is reflected in the Constitution itself, whereby Congress
is given power to 'define and punish Piracies and Felonies committed
on the high seas, and Offences against the Law of Nations. (38) In the
last century the US was a leading force in the establishment of the
Permanent Court of Arbitration; a chief architect of the United Nations,
the IMF and the World Bank; a leading sponsor of the ad hoc tribunals
on Rwanda and the former Yugoslavia; and a vocal endorser of the idea
of an international criminal court. Indeed, President Clinton called
for a permanent war crimes tribunal shortly before the Rome Conference
when addressing genocide survivors in Rwanda. (39) The impact of the
US failure to support the ICC may be symbolically important - a high-profile
rejection of a major initiative for the rule of law in international
affairs. But it will also be a lost opportunity if a state with a long-standing
commitment to human rights does not take a lead in shaping the work
of the world's first international criminal court. Indeed, the ICC Statute
has principles central to American conceptions of justice all over it,
reflecting ideas such as due process, command responsibility, and superior
orders, to name but a few. (40) Participation in the ICC would mean
that the US would have a major role in shaping the evolution of the
Court in ways that further this vision of the future of the international
legal system
At the Rome Conference in 1998, the US worked closely with the UK throughout
long and difficult negotiations to ensure that the Statute of the ICC
contains adequate safeguards against politically motivated prosecutions
of our citizens. It is plain that the UK was and remains satisfied that
this was achieved.
Now, as then, the UK remains convinced that US and UK national interests
in taking forward the Court coincide; and that the overriding concern
of the international community to bring an end to impunity for war crimes
and crimes against humanity will be advanced significantly by the emergence
of the ICC, with American participation.
The US claims that the Rome Statute is flawed. Certainly it is not
perfect. While the Statute is a reflection of wide agreement which inevitably
involved some compromises, none of those compromises undermines the
basic fact that the Court will act only where national jurisdictions
cannot. The principal and fundamental safeguard within the Statute is
the 'complementarity principle' I mentioned earlier, whereby national
judicial systems of States Parties will have the first bite at the cherry
in respect of any investigation which affects their territory or their
nationals. UK courts retain the right and responsibility to investigate
offences committed in the UK, or where British Citizens stand accused
of committing ICC crimes anywhere else in the world. The same is true
in respect of the national courts of all parties, including the US if
it chooses to join. The ICC will therefore be able to step in only where
a national judicial system is unwilling or unable genuinely to investigate.
In relation to the UK, no circumstances are foreseen under which that
would apply to the British judicial system. In any case, the Prosecutor
of the ICC must notify all States Parties and States with jurisdiction
over the case before beginning an ICC investigation, and cannot on her
or his own initiative begin an investigation without first receiving
the approval of a Chamber of three judges. At this stage, it would be
open to States to make it clear that they will investigate allegations
against their own nationals themselves. In such a situation the ICC
must then suspend its investigation. The Court will only take over if
the national system is unable to investigate, for example, because of
a breakdown in its judicial systems; or because it had refused to investigate
without appropriate justification. If it had investigated and subsequently
refused to prosecute, the International Court could only proceed if
it concluded that that decision was motivated purely by a desire to
shield the individual concerned. This, it will be clear, is an unlikely
prospect in the UK if an accusation appeared to have any basis in fact.
And the same would undoubtedly be true in respect of the US were an
accusation to appear well founded against one of its citizens.
Australia made its position clear when it entered the following declaration
when it ratified the Rome Statute.
"The Government of Australia, having considered the Statute,
now hereby ratifies the same, for and on behalf of Australia, with
the following declaration, the terms of which have full effect in
Australian law, and which is not a reservation:
Australia notes that a case will be inadmissible before the International
Criminal Court (the Court) where it is being investigated or prosecuted
by a State. Australia reaffirms the primacy of its criminal jurisdiction
in relation to crimes within the jurisdiction of the Court. To enable
Australia to exercise its jurisdiction effectively, and fully adhering
to its obligations under the Statute of the Court, no person will
be surrendered to the Court by Australia until it has had the full
opportunity to investigate or prosecute any alleged crimes. For this
purpose, the procedure under Australian law implementing the Statute
of the Court provides that no person can be surrendered to the Court
unless the Australian Attorney-General issues a certificate allowing
surrender. Australian law also provides that no person can be arrested
pursuant to an arrest warrant issued by the Court without a certificate
from the Attorney-General.
Australia further declares its understanding that the offences in
Article 6, 7 and 8 will be interpreted and applied in a way that accords
with the way they are implemented in Australian domestic law."
The International Criminal Court has been heralded as perhaps the most
significant international organization to be created since the United
Nations. (41) If that is true, then it is of some significance that
the world's most powerful nation has not only opted out of the Court,
but has taken strident measures to oppose it. The United Kingdom and
many other states which are close allies of the USA have ratified the
Statute, and enacted domestic legislation to promote the working of
the International Criminal Court. In 1998 the UK concluded, and after
the most careful consideration, that the liberty and well-being of its
citizens: whether service personnel, officials, politicians or civilians,
will not be threatened by malicious or politically motivated arrest
and indictment in a foreign land by virtue of its commitment to the
Court. The UK has long acknowledged that the US has a lead role in defending
our common values, maintaining peace and security and defending democracy
and human rights throughout the world. The UK has closely aligned itself
with that role and has deployed troops in different parts of the world
in pursuit of those values.
While the USA has been a leader in the development of public international
law, it is unfortunate, in my opinion, that (allegedly along with China,
Iraq and Libya), it is one of only 7 governments which voted against
the adoption of the Statute of the International Criminal Court in July
1998. And now of course it is apparent, that for the present time at
least, the United States will not become a party to the Statute. I consider
that to be highly regrettable. The ICC has come into force despite the
efforts of the United States, and it will operate - successfully I am
sure - without the United States, as do many other international tribunals
(such as the International Tribunal for the Law of the Sea, in Hamburg).
But the ICC would surely be an even greater success if the United States
was to participate, assisting in the development of the procedural and
substantive rules, the activities of the Prosecutor and, if there were
an American judge, the development of the Court's jurisprudence. The
absence of the United States means that we all stand to lose from the
full benefit of the experience of a country with the strongest commitment
to the rule of law generally and expertise in criminal and international
law in particular. I hope, in these circumstances, that the United States
will leave the door open to future participation and, in the meantime,
provide constructive support from the sidelines.
Conclusion
It has come time now for me to conclude. Under the rubric of 'international
criminal justice' I have had the opportunity of speaking with you about
the prospects that the ICC holds for the idea of women's justice, as
well as the contribution it will make to criminal justice more generally.
There is every reason to believe that the Court, now staffed by adequately
qualified women and men, will provide international justice across the
broad spectrum of matters it will come to face.
The ICC is part of a continuum, a process that was catalysed in Nuremburg.
As regards the international aspirations of the Court, my hope is that
in years to come there will be a broad and universal acceptance of the
International Criminal Court by all nations. The beginnings are positive,
let us hope for a Court which is, in time, worthy of its name and our
continued strong support.
1 'Were They Just Obeying Orders?', The Guardian, May 7, 1996, at 10,
quoted in Simon Chesterman 'Never Again ... and Again: Law, Order, and
the Gender of War Crimes in Bosnia and Beyond', (1997) 22 Yale J. of
Int. Law, 299 at 316.
2 See William Schabas An Introduction to the International Criminal
Court 2001 vii.
3 See Kriangsak Kittichaisaree International Criminal Law 2001 27.
4 See James Crawford 'The ILC's Draft Statute for an International Criminal
Tribunal' (1994) 88 American Journal of International Law 140; James
Crawford 'The ILC Adopts a Statute for an International Criminal Court'
(1995) 89 American Journal of International Law 404.
5 See UN Security Council Resolution 808 of 22 February 1993 and Resolution
827 of 25 May 1993. For detailed accounts of the creation of the ICTY
see M.C. Bassiouni and P. Manikas The Law of the International Criminal
Tribunal for the Former Yugoslavia 1996 Chapters I-III. See too Virginia
Morris and Michael Scharf An Insider's Guide to the International Criminal
Tribunal for the Former Yugoslavia: A Documentary History and Analysis
1995.
6 See UN Security Council Resolution 955 of 8 November 1994. For detail
see C. Scheltema and W. van der Wolf (eds.) The International Tribunal
for Rwanda: Facts, Cases, Documents, 1999.
7 At Nuremberg 'crimes against humanity' were prosecuted as crimes associated
with one of the other crimes within the Nuremberg Tribunal's jurisdiction,
namely, war crimes and crimes against peace. Since Nuremberg several
variants of crimes against humanity developed, not all with a nexus
with armed conflict (the most prominent example is genocide - the most
egregious form of crime against humanity - which the Genocide Convention
of 1948 defines as an offence which can be committed in times of peace
and war). The requirement of a nexus with armed conflict was firmly
done away with by the Yugoslavia Tribunal in its celebrated decision
in Prosecutor v Tadic (Case No. IT-94-1-AR72), 2 October, 1995, (1997)
35 ILM 32. Article 7 of the Rome Statute codifies this evolution of
crimes against humanity as being crimes committed either in times of
peace or war.
8 The Tadic case once again; see Tadic note 10 above. Interesting developments
have also come out of the Rwanda Tribunal's decisions. For instance,
in the Akayesu matter (Judgment, ICTR Trial Chamber (2 September 1998),
Case No. ICTR-96-4-T), the Rwanda Tribunal, largely through the efforts
of the South African judge, Navi Pillay, came to the enlightened conclusion
that rape could constitute an act of genocide. See further the discussion
below.
9 See William Schabas op cit 12.
10 See Cherie Booth and Philippe Sands, 'Keep Politics out of the global
courts', The Guardian, Friday July 13, 2001.
11 See generally Rhonda Copelon 'Gender Crimes as War Crimes: Integrating
Crimes against Women into International Criminal Law', (2000) 46 McGill
Law Journal, 217, 220-228.
12 See Theodore Meron, 'Rape as a Crime under International Humanitarian
Law', (1993) 87, AJIL, 424, at 425, citing Tadeusz Mazowiecki, Special
Rapporteur, Report on the situation of human rights in the territory
of the former Yugoslavia, A/48/92 - S/25341, Annex, at 20, 57 (1993).
13 George S. Patton JR, War As I Knew It, (1947) 23, quoted in Susan
Brownmiller, Against Our Will: Men, Women and Rape (1975) 23 and cited
in Chesterman, op cit, at 324.
14 Chesterman, op cit, 328.
15 See Report of the Secretary General, 3 May 1993 (S/25704), cited
in Cate Steains 'Gender Issues', in Roy Lee (ed.), The International
Criminal Court: The Making of the Rome Statute - Issues, Negotiations,
Results (1999), at 376.
16 Judgment, ICTR Trial Chamber (2 September 1998), Case No. ICTR-96-4-T,
available at http://www.ictr.org.
17 See Kelly Askin, 'Women's Issues in International Criminal Law: Recent
Developments and the Potential Contribution of the ICC', in Dinah Shelton
(ed.), International Crimes, Peace, and Human Rights: The Role of the
International Criminal Court, (2000) at 52.
18 See Rhonda Copelon, 'Gender Crimes as War Crimes: Integrating Crimes
against Women into International Criminal Law', (2000) 46 McGill Law
Journal, 217 at 224-225. Copelon points out that rape formed no part
of the first series of the ICTR indictments, even though it was included
as a crime against humanity in the ICTR Statute and mentioned therein
as an example of the war crime of humiliating and degrading treatment.
This was notwithstanding the fact that a Human Rights Watch/Federation
Internationale des Ligues des Droits de L'Homme report focused on rape
and sexual assault in the Taba Commune, over which Jean Paul Akayesu
had control. The same report documented the failure of the prosecutorial
staff to take rape seriously as well as the inappropriateness and lack
of training of the investigative staff to undertake rape enquiries.
19 Jan Goodwin, 'Rwanda: Justice Denied', On the Issues, Fall, 97, vol.
6, no.4, at 2, available at http://www.echonyc.com/-onissues/f97rwanda.html.
20 See Cate Steains, op cit, in Lee, op cit, at 378, as well as Copelon,
op cit, at 224-226). See also Kelly Askin who writes that 'it is highly
unlikely that the Akayesu decision ... which exemplifies a heightened
awareness of crimes committed against women, would have demonstrated
such gender sensitivity without South African Judge Navanethem Pillay's
participation in both the trial and the judgment' (Askin, 'Sexual Violence
in Decisions and Indictments of the Yugoslav and Rwandan Tribunals:
Current Status', (1999) 93, AJIL, 97 at 98, fn. 8); see too Barbara
Bedont and Katherine Martinez, 'Ending Impunity for Gender Crimes under
the International Criminal Court', (1999) vol. vi, The Brown Journal
of World Affairs, 65-85, available at http://www.crlp.org/pub_art_icc.html.
21 See Askin, 'Sexual Violence in Decisions and Indictments of the Yugoslav
and Rwandan Tribunals: Current Status' (1999), AJIL, vol. 93, 97 at
105-106.
22 United Nations, Division for the Advancement of Women and Centre
for Refugee Studies, York University, Canada, Gender-Based Prosecution:
Report of the Expert Group Meeting, EGM/GBP/1997/Report, (Toronto, 9-12
November, 1997) at 33, cited in Bedont and Martinez op cit.
23 See Gerry Simpson, 'War Crimes: A Critical Introduction', in Timothy
McCormack and Gerry Simpson (eds.), The Law of War Crimes: National
and International Approaches (1997) at 29.
24 See the Preamble to the Statute of the International Criminal Court.
25 Robert H. Jackson, The Nurnberg Case, as Presented by Robert H. Jackson,
(1947), at 8.
26 Simpson, op cit, 28.
27 Provisional Verbatim Record of the Three Thousand One Hundred and
Seventy-Fifth Meeting, UN SCOR, 3175th mtg., at 12-13, UN. Doc. S/PV.3175
(22 Feb., 1993), quoted in Payam Akhavan 'Justice in The Hague, Peace
in the Former Yugoslavia? A Commentary on the United Nations War Crimes
Tribunal', (1998), 20, HRQ, 737 at 750.
28 See Chesterman op cit 312.
29 See Jackson, op cit, 94.
30 Simpson, op cit, 8.
31 So William Schabas writes that the term 'complementarity' may be
somewhat of a misnomer, 'because what is established is a relationship
between international justice and national justice that is far from
"complementary". Rather, the two systems function in opposition
and to some extent hostility with respect to each other. The concept
is very much the contrary of the scheme established for the ad hoc tribunals
[for Yugoslavia and Rwanda], whereby the international court can assume
jurisdiction as a right, without having to demonstrate the failure or
inadequacy of the domestic system' (Schabas op cit 67).
Schabas is referring here to the fact that the International Criminal
Tribunals for the Former Yugoslavia and Rwanda, both of which are set
up by the UN Security Council exercising its enforcement power under
Chapter VII of the UN Charter to maintain international peace and security,
exercise primacy jurisdiction over the national courts in those two
countries.
32 Bert Roling, 'Aspects of Criminal Responsibility for Violations of
Laws of War', in Antonio Cassesse (ed), The New Humanitarian Law of
Armed Conflict, (1979), at 206.
33 The renowned Czech author, Milan Kundera, reminds us that 'the struggle
of man over power is the struggle of memory over forgetting'.
34 Antonio Cassesse, 'On the Current Trends towards Criminal Prosecution
and Punishment of Breaches of International Humanitarian Law', (1998)
vol. 9, no.1, EJIL, 2 at14, available at http://www.ejil.org/journal/vol9/no1,art1-01.html.
35 See Payam Akhavan, 'Justice in The Hague, Peace in the Former Yugoslavia?
A Commentary on the United Nations War Crimes Tribunal', (1998), 20,
HRQ, 737 at 784.
36 Richard Goldstone, 'Fifty Years After Nuremberg: A New International
Criminal Tribunal for Human Rights Criminals', in Albert Jongman (ed.),
Contemporary Genocides: Causes, Cases, Consequences, (1996) at 215,
cited in Akhavan, op cit, at 766.
37 See generally Simpson, op cit, 16-17.
38 Constitution of the United States, Article I, Section 8.
39 During March 1998, at Kigali. See Lawrence Weschler, 'Exceptional
Cases in Rome: The United States and the Struggle for an ICC', in Sarah
Sewall and Carl Kaysen (eds.), The United States and the International
Criminal Court, (2000), at 91.
40 See the comments of Theodore Meron, recorded in Lawrence Weschler,
op cit, in Sewall and Kaysen (eds.), op cit, at 109.
41 See William Schabas op cit 20.
