EXECUTIVE SUMMARY “Law cannot persuade where it cannot punish” — Thomas Fuller, 1732
As we approach the new millennium, international human rights law stands poised to move to a whole new level. After 50 years of contemplation, discussion and negotiation, the world is on the brink of creating an international criminal court (ICC) capable of punishing individuals for perpetrating gross violations of international human rights law. The relationship between the proposed ICC and the U.N. Security Council will be pivotal in creating a credible and effective institution able to punish those who commit crimes that shock the conscience of humanity. The capacity to punish will be critical if international human rights law is going to evolve beyond its current de facto status as a voluntary code of conduct, enforced by peer pressure. This report is concerned with the policy the U.S. administration should adopt regarding the relationship between the ICC and the U.N. Security Council. In line with its responsibilities to the people of the United States, the policy pursued by the U.S. administration should be the one which best serves U.S. interests and advances U.S. foreign policy goals and objectives. The primary U.S. foreign policy goal is the maintenance of international peace and stability; the United States should pursue a policy that creates an ICC that advance this goal. In order to do so, the ICC will need to be credible and effective. The U.S. administration should also work to ensure that the final treaty establishing an ICC is politically feasible, i.e. it can achieve ratification through the U.S. system. This means the ICC treaty will have to get the advice and consent of the U.S. Senate. History shows that an international institution cannot be effective and credible without the support of the United States. To get the support of the U.S. Senate, the U.S. administration will have to ensure that the proposed ICC does not detract from current U.S. powers and privileges internationally, especially regarding the United States’ veto in the Security Council. Thus effectiveness, credibility and political feasibility are the benchmarks by which the U.S. administration should judge policies governing the relationship between the ICC and the Security Council. There are three policy alternatives available regarding this relationship; the status quo option, the Singapore proposal and the traditional model. The status quo option — contained in Article 23 of the draft ICC treaty — stipulates that only the Security Council and states that are party to the treaty can trigger the ICC’s jurisdiction by referring situations to the ICC’s prosecutor for investigation. The ICC’s prosecutor would have no independent capacity to initiate proceedings. Furthermore, the status quo option precludes the ICC from proceeding on a matter if it is on the Security Council’s active agenda, unless the Security Council specifically says that it can. Permission for the ICC to proceed on a matter could always be vetoed by one of the veto-holding permanent members of the Security Council. The Singapore proposal — so-called because it was initially put forth by the Singaporean government — subtly alters the balance of power between the Security Council and the proposed ICC. The Singapore proposal does not alter the mechanisms by which situations are channeled to the ICC. However, if a case is referred to the ICC that is on the Security Council’s active agenda, the ICC is free to initiate proceedings on that matter unless the Security Council specifically forbids it to. This means that an attempt to halt the ICC from taking action in a situation could always be scuttled by the veto of any one of the permanent Security Council members. The traditional model recreates the situation that prevails in most effective national judiciaries at the international level. According to the traditional model, the ICC prosecutor would be empowered to initiate proceeding unfettered by any outside authority. This would create a new international institution
able to seek out situations for investigation based on whatever information it deems appropriate and without interference from political authorities. In terms of the relationship between the ICC and the Security Council, the status quo option gives primacy to the Security Council over an ICC by giving it a veto over ICC actions. In contrast, the Singapore proposal strikes a balance between the two institutions by limiting the Security Council’s capacity to veto ICC action. The traditional model gives primacy to the ICC by empowering an independent prosecutor to initiate proceedings without having to answer to the Security Council or member states. This report concludes that, while the status quo option comes closest, none of these three alternatives can effectively achieve U.S. foreign policy goals when viewed through the lens of U.S. objectives of effectiveness, credibility and political feasibility. Because of the interdependent nature of these three objectives, the U.S. administration should not settle for one of these three alternatives, but should adopt a compromise option that combines the most important elements of all three.
• This compromise alternative would continue to allow the Security Council and state parties to the ICC treaty to refer situations to the prosecutor.
• As with the status quo option, the prosecutor could not initiate judicial proceeding regarding a situation of which the Security Council is seized. However, in the compromise, the term “seized” is specifically defined as including a one year time limit introducing an important element of the Singapore proposal. While the Security Council could halt ICC action regarding a particular situation indefinitely, it could only do so after passing a resolution through the Security Council on that situation annually. Thus, just as with the Singapore proposal, any attempt to stop the ICC from addressing a situation would have to win the support of a majority in the Security Council and could always be scuttled by any one of the Council’s permanent members.
• The compromise proposal would allow
the ICC prosecutor to initiate investigations ex officio, or on the basis of information obtained from various sources. This would respond to the concern that the Security Council and states parties do not always have the information, means or political will to follow and respond to cases of gross violations of human rights.
• This compromise proposal would not give the prosecutor the authority to initiate
judicial proceedings. Such a step would almost certainly make the proposal politically unfeasible. However, in a case where judicial proceedings were stayed as a result of a situation being on the Security Council’s active agenda, there would be no requirement that the investigation be halted. This is essential because timely investigations of gross violations of human rights are critical to preserving necessary evidence for use if, and when, judicial proceedings were initiated.
The compromise proposal combines the most beneficial elements of the status quo option, the Singapore proposal and the traditional model. Since the Security Council could veto action by the ICC, there is reason to believe that the proposal could be acceptable to the U.S. Senate and other governments and would therefore be politically feasible. The fact that the ICC could only be indefinitely denied access to particular situations as a result of a positive vote in the Security Council means that there is a good chance that it will be able to win the support of the majority of the world’s governments, which would give the institution credibility. The fact that the proposal establishes a formal relationship between the
ICC and the Security Council means that the ICC would be able to tap into the Security Council’s formidable enforcement powers, which means that the ICC would be effective. This report recommends that the U.S. administration pursues this compromise proposal regarding the relationship between the ICC and the Security Council in order to create an institution that can serve U.S. foreign policy goals by acting as a bulwark for international peace and stability. The establishment of an ICC marks an important development in the evolution of international law. It has taken 50 years of discussion, contemplation and negotiation to get to this point. Such a juncture may not come again for a long time. We cannot afford to fail in our task. The relationship between the ICC and the Security Council will be pivotal in insuring the effectiveness and credibility of the institution. As we prepare for the end of the bloodiest century in the history of the humanity, the U.S. administration must carefully and intelligently pursue policy that can achieve U.S. foreign policy goals and create an institution that is a worthy legacy to future generations
Table of Contents
Introduction ................................................................................................................ Page 1 Policy Problem Statement .................................................................................................. 2 Background and Context .................................................................................................... 6 Data and Methodology ....................................................................................................... 8 U.S. Administration’s Interests .......................................................................................... 9 Foreign Policy Goal: Maintaining International Peace and Stability ..................... 10 Criteria 1: Enforcement and Effectiveness ............................................................. 13 Criteria 2: Impartiality and Credibility ................................................................... 14 Criteria 3: Political Feasibility ................................................................................ 15 Policy Variables .................................................................................................................. 17 Independent Prosecutor .......................................................................................... 18 Security Council ...................................................................................................... 20 States Parties To The ICC Treaty ............................................................................ 21 State Consent Regime .............................................................................................. 22 Policy Alternatives ............................................................................................................... 23 Status Quo Option .................................................................................................... 23 Singapore Proposal .................................................................................................. 24 Traditional Model .................................................................................................... 25 Evaluation of Alternatives ................................................................................................... 25 Status Quo Option .................................................................................................... 26 Singapore Proposal .................................................................................................. 28 Traditional Model .................................................................................................... 29 Conclusion and Recommendation ....................................................................................... 31 Appendices Appendix I: Recent U.S. Legislative Developments Regarding ICC ...................... i Appendix II: Interviewees ........................................................................................ ii
Appendix III: Relevant Articles of Draft ICC Treaty & Singapore Proposal .......... iii
INTRODUCTION
It has been said that the way to get away with murder is to kill hundreds or thousands of people, rather than just one. The logic runs that if a person commits a single murder that person can expect to be arrested and tried for murder. However, if a person kills hundreds or thousands of people, this crime is considered genocide. Because no institutional apparatus exists to try a criminal for genocide, that person is likely to walk free.
While this is a caricature of reality, it highlights the paradox faced by policymakers dealing with international human rights law. Gross violations of international human rights generate conditions that tend to preclude the effective workings of national judiciaries and no international criminal court exists to fill the void. This conundrum has created momentum for the establishment of an international criminal court (ICC) capable of prosecuting individuals responsible for such gross violations of international human rights as genocide, war crimes and crimes against humanity.
This report is designed to provide policy advice to U.S. policymakers, in particular Ambassador David Scheffer at the U.S. State Department, on certain critical issues involved in creating an ICC. Scheffer is the Ambassador-at-Large for War Crimes, heads the U.S. delegation to the negotiations to establish an ICC and leads the Inter-Agency Task Force for policy on the ICC in the U.S. administration. Specifically, this report will examine how the relationship between the ICC and the United Nations Security Council should be structured in order to maximize the attainment of relevant U.S. foreign policy goals and objectives.
At the present time there is no ICC and therefore there is no model that can be copied in designing policy regarding this crucial relationship. The four ad hoc tribunals that the U.N. Security Council has established in the past 50 years do offer some guidance. However, these tribunals have been limited to a specific situation in a specific time frame. The draft ICC treatyi presently being negotiated by the international community proposes one option, which I will call the status quo option. In the discussion
surrounding the ICC treaty, two alternatives have emerged, which I have called the Singapore proposal and the traditional model. In terms of the relationship between the ICC and the Security Council, the status quo option gives primacy to the Security Council over an ICC by giving it a veto over ICC actions. In contrast, the Singapore proposal attempts to strike a balance between the two institutions by limiting the Security Council’s capacity to veto ICC action. The traditional model gives primacy to the ICC by empowering an independent prosecutor to initiate proceedings without having to answer to the Security Council or member states.
After careful analysis of these three alternatives in light of U.S. foreign policy goals and objectives, none of these options can effectively achieve all relevant U.S. policy goals and objectives. The primary goal of U.S. foreign policy regarding an ICC is the maintenance of international peace and stability. To this end, the U.S. objectives are to create an ICC is credible and effective and to craft an ICC treaty that can gain the support of the great powers. As a result, U.S. policymakers should press for a compromise that combines the best elements of all three proposal. The compromise option would allow the prosecutor some limited autonomy of action and also give the Security Council a veto over ICC actions. However, this veto would be temporally limited, utilizing mechanisms from the Singapore proposal. Such a compromise would best serve U.S. interests.
POLICY PROBLEM STATEMENT
In June 1998, leaders from all over the world will gather in Rome to hammer out the final details of a treaty establishing an ICC. This report is designed to offer guidance to policymakers as they work to draft this treaty. This report is focused on how to design policy regarding the relationship between the ICC and the U.N. Security Council in such a way as to maximize the attainment of U.S. policy goals and objectives. This section will lay out the parameters of the policy problem to be addressed and the ramifications of the problem specifics.
There is a growing recognition worldwide that a permanent, treaty-based court is needed to end impunity for international criminals; to serve as an alternative for protection when national courts are unavailable or ineffective; to promote peace and justice through individual accountability; to redress numerous inadequacies of reliance on ad hoc tribunals; to apply clearly established international criminal law; and to deter future atrocities. For the ICC to dispense justice while acting as a deterrent to future crimes it must be credible and effective. The credibility of an ICC will be inferred by the cases over which it presides (subject matter jurisdiction) and the way, or ways, in which the court’s jurisdiction can be initiated (trigger mechanisms).ii
The issue of credibility becomes even more acute when the relationship between the ICC and the U.N. Security Council is introduced. The draft treaty establishing the ICC envisions that it will be an independent institution, not directly tied to the U.N. or any other international body.iii However, the relationship between the ICC and the U.N. is particularly important because of the pre-eminent position that the U.N. — and the Security Council in particular — has in international law. According to the U.N. Charter, a nation’s responsibilities to the U.N. takes precedence over all other legal and treaty obligations that were entered into either before or after it.iv As a result, a state’s responsibilities under the U.N. Charter take precedence over its responsibilities under any other legal instrument, including the ICC treaty. Furthermore, according to the U.N. Charter, the Security Council is the principal institution endowed with responsibility for issues of international peace and stability and states specifically agree to cede an aspect of their own sovereignty to the Security Council. As the U.N. Charter puts it: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” This means that the actions of the Security Council would take precedence over the actions and rulings of the ICC unless the Security Council specifically agreed to some other arrangement in advance. As a result, it is critical that the relationship between the Security Council and the ICC be clearly defined in advance.
Article 23 of the ICC’s draft treatyv directly addresses this relationship. Under Paragraph 1 of this Article, the Security Council, acting under Chapter VII of the U.N. Charter, could trigger the court’s jurisdiction by referring a matter to the ICC. Adherence to Security Council rulings is mandatory for all U.N. member states under international law. This would allow the ICC to bypass cumbersome consent requirements provided for in the ICC’s draft treaty and allow the court to be “seized”vi of a case without the attending jurisdictional challenges. The referral of a situation would also grant the ICC the benefit of the Security Council’s significant enforcement powers in the conduct of its investigations, in any subsequent trials and in the imposition of criminal penalties.
The ICC draft treaty envisions another link between the ICC and the Security Council. Article 23 Paragraph 3 states that no prosecution could be initiated in connection with a situation being dealt with by the Security Council, under its Chapter VII powers, unless the Security Council specifically states otherwise. The commentary to the draft treaty explains that this is an acknowledgment of the Security Council’s primary responsibility for the maintenance and restoration of international peace and security. It specifies that the ICC prosecutor would be obliged to refrain from initiating proceedings as long as the council was seized of a matter.
Many governments and non-governmental organizations find Article 23 Paragraph 3 controversial. While it is supported by the United States and four of the five permanent members of the Security Council,vii the majority of U.N. member states consider it unsatisfactory. Since the Security Council is involved in most matters of international conflict and its involvement can, in some cases, last several decades, this could effectively deny the ICC access to exactly the issues and situations that would be most pertinent. Moreover, the provision requiring positive permission by the Security Council is seen by many as placing inordinate power in the hands of the five veto-holding permanent members of the Security Council to deny the ICC access to cases that might be potentially troublesome or embarrassing.
As drafted, the ICC treaty echoes Article 12 of the U.N. Charter. This article bars the General Assembly from making recommendations on a situation of which the Security Council is seized unless requested by the Security Council to do so. This reflects the philosophical predisposition of the U.N.’s founders toward the maintenance of peace over the establishment of justice.
The “peace vs. justice” debate lies at the heart of the relationship between the ICC and the Security Council: Should the Security Council have freedom to maintain international peace unhindered by international institutions, such as the ICC, or should the ICC, through an independent prosecutor, have the unfettered capacity to pursue justice on the international stage? While peace and justice are not necessarily mutually exclusive, the controversy arises over finding the most appropriate policy when the pursuit of peace and the pursuit of justice necessitate different approaches.
It should also be noted that the establishment of an ICC would diminish the power, authority and responsibilities of the Security Council. Currently, the only way to try individuals for violations of international law, if no national judicial institution is available, is for the Security Council to establish an ad hoc tribunal. The benefit of the status quo for Security Council members, especially those with a veto, is that they can block the establishment of tribunals in situations that are antithetical to their own interests. The establishment of an ICC would effectively remove that policy lever from Security Council members.
Thus, the relationship between the ICC and the Security Council goes to the heart of the effectiveness of any future ICC. This report will examine the issue of the relationship between the ICC and the Security Council in light of the foreign policy goals of the U.S. State Department. It will attempt to evaluate the various policy proposals and offer advice on the policy that Ambassador Scheffer should press for.
BACKGROUND AND CONTEXT
In this section I will briefly outline the historical evolution of the idea of an ICC. I will also sketch the relationship and position that important U.S. institutions, such as the U.S. Congress and the American Bar Association, have taken regarding an ICC.
For more than 50 years, the international community has discussed the establishment of a permanent international criminal court. The impetus for the ICC initiative began with the League of Nations’ unsuccessful efforts to establish international criminal tribunals before and after World War I. Almost 30 years later, after World War II, the Nuremberg and Tokyo international war crimes tribunals, which were recognized as legitimate expressions of international law by the United Nations in 1946,viii created a tangible precedent for the ICC, setting the stage for the creation of a permanent institution. As Benjamin Ferencz, prosecutor in the U.S. war crimes tribunals in Nuremberg, has put it, “The Nuremberg Tribunals were a precedent and a promise ... after half a century, it now seems possible that the promise may yet be fulfilled.”ix
In the 1950s, the U.N. General Assembly mandated the International Law Commission (ILC) to prepare a draft statute to create an ICC, utilizing the experience gained at the Nuremberg and Tokyo tribunals as well as other scholarly and legal sources. The wording of the 1948 Genocide Convention, which refers specifically to an international criminal tribunal, demonstrates that, at that time, international policymakers expected an ICC to be established in the near future.x However, efforts to establish the ICC have been delayed for decades by the Cold War, which froze progress in its tracks.
In 1989 Trinidad and Tobago, concerned about the extent to which the international trade in narcotics was impacting the Caribbean region, reintroduced the idea of an ICC to the U.N. General Assembly. With the end of the Cold War, the idea garnered widespread support within the entire General Assembly and within the General Assembly’s Sixth Committee, which deals with international legal matters. As a
result, the General Assembly formally requested that the ILC prepare a draft statute for a permanent ICC in 1989.
The cause gained even wider international acceptance after the genocidal activities in the former Yugoslavia and Rwanda. The speed with which the U.N. Security Council was able to create ad hoc criminal tribunals to deal with these situations, the first since World War II, convinced many that the creation of a permanent ICC was, at last, feasible. In 1994, in reaction to the ILC’s draft statute, the General Assembly created a formal negotiating process by which world governments could provide their input into the wording of the proposed treaty establishing an ICC.
An international diplomatic conference has been called to adopt a multilateral treaty that will establish this institution. It will take place in Rome in June 1998. It is possible that the ICC will be operational by the close of the century. Indeed, U.S. President Bill Clinton affirmed this possibility when he told the U.N. General Assembly, “Before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law.”xi
In recent years, U.S. Congressional support for the establishment of an ICC has been expressed in resolutions passed by the 99th, 100th, 101st, 102nd and 103rd Congresses. Recently a joint resolution, co-sponsored by Representative Jim Leach (R-Iowa) and Representative Patrick Kennedy (D-RI), calls on the president “to support and fully participate in negotiations at the United Nations to conclude an international agreement to establish an international criminal court.”xii Early in 1998, twenty years after first calling for an ICC, the American Bar Association expressed strong support for “the establishment of a permanent International Criminal Court by multilateral treaty in order to prosecute and punish individuals who commit the most serious crimes under international law,” and called on the U.S. government “to play an active role in the process of negotiating and drafting a treaty establishing the ICC.”xiii
DATA AND METHODOLOGY
In this section I will outline the methodology I employed to analyze the policy options regarding the relationship between the Security Council and an ICC and will discuss my primary data sources.
As there is no existing institution that is analogous to an ICC, beyond the examples of the four ad hoc international criminal tribunals, I relied most heavily on the opinions of the individuals, organizations and institutions that are closest to the issue in my efforts to investigate how the relationship between an ICC and the U.N. Security Council should be designed. Thus, I adopted a focused synthesis approach, combining personal interviews with careful analysis of policy statements, speeches, a variety of official documents and reports and media accounts. In addition I consulted theoretical material, dealing with international law, human rights, institutional design, political structures and ethics.
I held interviews and consultations with members of the U.S. administration, especially the State Department, as well as representatives of non-governmental organizations and U.N. officials.xiv These took place between June 1997 and June 1998. I also scrutinized a wide array of official documents, reports, resolutions by organizations including the U.N., the U.S. State Department, Congress and foreign governments as well as various non-governmental organizations, including the American Bar Association, Amnesty International, Human Rights Watch, the Lawyers Committee on Human Rights, the United Nations Association, the Washington Working Group on the ICC, the Southern California Working Group on the ICC and the International Coalition on the ICC. Also I utilized reports, articles and accounts distributed by the media as well as a variety of materials distributed online to supplement the analysis.
The ICC treaty is creating an institution from scratch. Thus, I felt that only by accessing the insight of those closest to the issues could I draw valid conclusions about how the relationship between the ICC and the Security Council should be designed.
U.S. ADMINISTRATION’S INTERESTS
This section will attempt to draw conclusions about what the United States’ primary foreign policy goal is regarding the establishment of an ICC. It will identify underlying objectives that can then be used as criteria with which to evaluate the effectiveness of the various policy alternatives.
The yard stick by which Ambassador Scheffer should measure any proposed policy is how effectively that policy achieves U.S. foreign policy goals, as understood by the U.S. administration. Thus, defining U.S. goals and the appropriate strategies and objectives for achieving those goals, is a critical first step in evaluating policy options. In this case, the decisive U.S. foreign policy goal involved in establishing an ICC is the maintenance of international peace and stability. In order to achieve this goal, the establishment of an effective and credible ICC and the maintenance of U.S. global power — which will be decisive in determining whether the ICC treaty will be ratified by the United States — are the most important objectives. While I will touch on how the ICC itself will promote these goals, in this analysis I will principally focus on how the various proposed policies for the relationship between the ICC and the Security Council relate to these goals and objectives.
Defining U.S. interests in foreign policy is not a simple matter. Foreign policy is necessarily a blend of realism and idealism, of ad hoc realpolitik and long-term strategic planning, political rhetoric and philosophically inspired principles. There is a constant tension between these elements and it is not always clear which is most important. This can lead to contradictory policies that are, at times, maintained by successive congressional and presidential regimes.
Furthermore, the primary foreign policy goals may not always be the same in practice as they are in theory. U.S. foreign policy goals — as outlined by the State Department — can be divided into six categories: national security; global issues; humanitarian response; democracy; law enforcement and American citizens and U.S. borders. Within these categories, specific goals speak directly to the mission of the ICC: preventing or minimizing the human costs of conflict; ensuring that local and regional
instabilities do not threaten the security and well-being of the United States or its allies; increasing global economic growth; increasing foreign government adherence to democratic practices and respect for human rights; and minimizing the impact of international crime on the United States and its citizens.xv The State Department officially lists 16 primary foreign policy goals. Thus on paper, the stabilization of global population is afforded the same weight as protecting national security. However, if these are the ideals of foreign policy, then, in reality, the implementation of foreign policy by practical policymakers is very different.
Realists, such as Henry Kissinger, assert that the heart of foreign policy is the maintenance and advancement of U.S. interests and that other goals should be subservient to this.xvi This argues for a reactive foreign policy agenda, flexible enough to recognize the subtleties of political and strategic necessities. In contrast, idealists contend that foreign policy should represent a principled program designed to achieve normative goals. This argues for the consistent implementation of policies that strive to achieve foreign policy ideals. The argument, as Kenneth Thompson puts it, is “between the “realists,” who ask what can be done, and the “idealists,” who assert what ought to be done.”xvii In theory, U.S. foreign policy appears to follow the idealistic prescription that sets out in detail what ought to be done. However, in practice, foreign policy is usually the result of realistic compromises, interpretations and prerogatives.
Foreign Policy Goal: Maintaining International Peace and Stability Nevertheless, at the level of primary foreign policy goals, there is little disagreement between the idealistic and realistic approaches. Both sides would agree that a minimum goal of foreign policy should be the maintenance of international stability and peace in regions perceived to have economic and strategic importance to the United States. This satisfied the realists who believe that conflict and instability disrupt trade, cause massive population movements and send global markets into chaos, effecting the capacity of the global economy to operate effectively and as a result detrimentally effecting on the U.S. economy. This also appeals to the idealistic side of foreign policy because instability and conflict are at the heart of most manmade humanitarian catastrophes. Thus the idealists will almost
always support efforts to establish peaceful conditions. In practice, therefore, the maintenance of international peace and stability can be thought of as a primary goal of U.S. foreign policy. On close examination, the motivations behind virtually all significant U.S. interventions in international affairs since the end of the Cold War have been related to the goal of establishing or re-establishing international stability and peace.
The most immediate way to establish international peace and stability is to end conflict or human rights abuses that created the instability in the first place. Secondarily, the implementation of regimes of justice, such as truth commissions or criminal tribunals, can alleviate some of the root causes of instability, and in doing so, diminish the probability of the conflict re-igniting. Thus, when faced with bloody conflicts or gross violations of human rights, the primary imperative of the international community is re-establishing peace and stability and halting the immediate suffering. As Ambassador Scheffer has put it, “It is often the case that conflict resolution is positioned first in the priorities of the international community when confronted with either an internal or international armed conflict.�xviii
This is not to imply that peace and justice are necessarily at odds or that the establishment of peace necessarily precedes the establishment of justice. It merely acknowledges that, in a situation of war or genocide, the first goal of United States foreign policy is to re-establish peace and stability;. While justice is an important part of any long-term peace plan, the first priority is to stop the bloodshed. Hence the establishment of peace is the primary mechanism for creating stability, and justice is a secondary mechanism necessary in order to perpetuate and reinforce that stability.
The U.S. administration has concluded that establishing an ICC will help promote international peace and stability. It will do this by creating an institution that can ensure enforcement of international law in a fair and consistent manner.
Domestic justice systems often break down during times of internal conflict or war. Historically, national judicial and enforcement mechanisms have often proven ineffective for international crimes, especially
crimes of such a magnitude that they threaten international stability. In these circumstances, governments and judiciaries have often proved unwilling or unable to prosecute their own citizens. There are many reasons for this unwillingness or inability. In Rwanda and Cambodia, the national courts are unable to perform this function because a large number of court officials were killed in the genocidal activities. The inability to perform effectively may also be a result either of court officials’ fear for their own safety or judicial and political leaders’ fear for the stability of the nation if judicial proceedings take place. Governments may also not prosecute their own citizens for reasons of culpability.
While the ad hoc tribunals for the former Yugoslavia and Rwanda are positive developments — and U.S. donations to these institutions far exceed those of any other nationxix — their narrow geographical and chronological focus gives rise to concerns about selective justice. The rationale for creating a single, permanent International Criminal Court is that such a court can ensure stability and consistency in international criminal jurisdiction.
In modern history, a disturbingly high proportion of the worst perpetrators of gross violations of international law have evaded judicial punishment, severely undermining the deterrent value of international human rights law. Thus, establishing a permanent regime of justice may act as a deterrent to those planning or perpetrating such human rights violations. As Senator Arlen Spector (R-Penn.) recently put it, “It would put on notice any future would-be war criminals that the world community will not tolerate genocide or crimes against humanity.”xx Furthermore, an ICC will provide the victims of such crimes with redress, particularly in situations where national courts cannot. Victims’ rights advocates have long asserted that justice brings relief and helps to prevent vicious cycles of revengeoriented violence, thus strengthening peace and stability. Individual accountability also removes the stigma of collective guilt from groups or entire nations, thus encouraging stability and reconciliation.
So it is the position of the U.S. administration is that the creation of an ICC would promote a critical U.S. foreign policy goal. In designing policies governing the ICC and the U.N. Security Council, it is important to keep this goal at the heart of the planning process. Moreover, if an ICC is to be an
appropriate and beneficial tool of foreign policy it needs to be effective and credible. Therefore, the goal of the U.S. negotiators drafting the ICC treaty should be to create an institution that can act as a bulwark for peace and stability in the international arena. These objectives are the evaluative criteria which will help identify the effectiveness of the policies drafted by these negotiators.
Criteria 1: Enforcement and Effectiveness If the goal of U.S. foreign policy is to create an institution that can maintain and strengthen international peace and stability, then it is in the interest of the United States to ensure that the institution created is effective. In this case, the court’s effectiveness will be seen in terms of its ability to dispense judicial rulings fairly and consistently and its ability to command the respect and attention of the world community. One of the primary challenges to the ICC’s effectiveness will be the extent to which states, and those individuals who commit gross violations of human rights, can ignore its demands. If the ICC can be ignored with impunity, then it will remain toothless and ineffectual and will not be in a position to promote international peace and stability.
Creating an efficient working relationship between the ICC and the Security Council will be an critical step towards ensuring the ICC’s effectiveness. As drafted, the ICC treaty does not provide the court with such independent enforcement mechanisms as a police force or military apparatus. It will therefore need to look elsewhere for practical enforcement powers. The most powerful enforcement mechanisms in international law are held by the Security Council, under Chapters VI and VII of the U.N. Charter.xxi Establishing a cooperative working relationship between the two institutions will allow the ICC to tap into the substantial enforcement capabilities of the Security Council and will be key to ensuring the effectiveness of the ICC.
Criteria 2: Impartiality and Credibility However, there comes a point at which too close a relationship between the ICC and the Security Council will hinder the ICC’s effectiveness. The nature of the Security Council — dominated as it is by the five veto-holding permanent members — means that its actions are often negatively perceived as
being politically influenced. If the ICC appears to be doing the bidding of the Security Council, then it may lose the impartiality that is critical to the effective execution of its judicial functions. If states believe that international law is being implemented unevenly, they are less likely to view the ICC as an impartial agent of international law. As it stands the draft ICC treaty gives the Security Council an effective veto in cases going before the ICC. Critics contend that such a policy “would compromise the court’s independence and credibility by politicizing the most crucial decisions — namely, determining which cases the ICC will be able to consider.”xxii
Submitting ICC subject matter jurisdiction to a Security Council veto could severely limit an ICC’s ability to act. ICC supporters frequently cite the fact that Pol Pot’s Khmer Rouge was never brought to justice for its genocidal actions in Cambodia as evidence of the need for an ICC. However, this case also highlights a potential problem. For many years the Khmer Rouge was allied with the Chinese government. As China holds a Security Council veto, it would be able to shield the Khmer Rouge from action by the ICC. Moreover, it is possible to imagine such protection occurring in several high-profile contemporary cases such as Iraq and Serbia, which both have close relationships with the Russian government. Therefore, too close a relationship between the ICC and the Security Council may undermine the ICC’s effectiveness by limiting the scope of its subject matter jurisdiction and undermining the faith international actors have in the court’s impartiality and credibility.
Criteria 3: Political Feasibility For the ICC to be credible and effective, it will need the active support of the great powers, especially the United States, the world’s sole remaining superpower. As ICC supporter Marvin Schachter puts it, “Without U.S. ratification of ICC, we will have an exercise in futility.”xxiii We need only recall the failure of the League of Nations to understand the significance of this relationship. Ambassador Scheffer acknowledged this fact when he said that if an ICC is to succeed, “It will need the United States as its strongest pillar of support.”xxiv For the ICC to obtain the support of the United States, the final treaty will have to be signed by the president and then obtain the “advice and consent” of the U.S. Senate in order for it to be ratified. When evaluating a particular alternative in terms of political feasibility, the primary
concern of the U.S. administration should be whether or not such an alternative can attain the support of the various parts of the U.S. government, particularly the U.S. Senate.
Obtaining the advice and consent of the U.S. Senate will be a difficult, but possible, task. Recent Senate ratification of the Genocide Treaty (1994) and confirmation of the appointment of Ambassador Scheffer (1997) are hopeful signs. The difficulty will arise from the conservative nature of the Republicancontrolled Senate, especially the chair of the Senate Foreign Relations Committee, Jesse Helms (RN.C.). Senate advice and consent will almost certainly rest on convincing key senators, such as Helms, that the ICC promotes U.S. interests without compromising any of the United States’ current powers, especially regarding the Security Council. Helms recently said that, as far as the Senate was concerned, the ICC would be “dead on arrival” if it was able to evade the U.S. Security Council veto.xxv
Therefore, it is critical that the final ICC treaty contains language that the U.S. Senate will not reject out of hand. If this were to happen, there would be no chance of the Senate providing its advice and consent and the ICC would have to proceed without the backing of the United States. This would almost certainly doom the court to impotence.
In order to ensure that the ICC treaty is ratifiable, the U.S. administration must ensure that the ICC treaty protects U.S. powers and global position. The administration must to focus on three things: preserving the United States’ veto in the Security Council; ensuring that the level of exposure faced by U.S. military and civilian personnel is not increased; and ensuring that the United States’ position of leadership and its alliances are not adversely impacted in the process.
The importance protecting the role of the Security Council and the power of the U.S. veto stems in part from the need to ensure that the ICC treaty will not be rejected by the U.S. Senate. However, there are also deeper issues at play. In terms of policy, the momentum to create an ICC is driven by the belief that it will be an effective mechanism for establishing, perpetuating and reinforcing stability and peace in international affairs. As the Security Council is the principal institution endowed with responsibility for
issues of international peace and stability, it is critical that the workings of the ICC “are consistent with the most critical requirements of converting war into peace”xxvi and, as such, do not interfere with the Security Council's work. Such an outcome would clearly be counterproductive, in terms of policy.
Because of the responsibilities of global leadership, U.S. military and civilian personnel are stationed all over the world with duties that range from humanitarian and peacekeeping roles to the development and implementation of U.S. policy. The ICC must have the capacity to investigate and prosecute anyone who commits international crimes against U.S. personnel and its protection should apply to them.
The exposure that U.S. personnel have also increases the potential problems that an ICC may create for the United States. There are those, especially within the U.S. military, who fear that an ICC might target U.S. personnel — particularly when they were acting as peacekeepers or carrying out Security Council mandates — and subject them to frivolous or politically motivated investigations at the instigation of a rogue prosecutor or unfriendly states, such as Libya or Cuba.xxvii Thus there must be safeguards that preclude the ICC from being used to harass U.S. personnel and organizations as they carry out their legitimate actions. This could be achieved through bolstering the concept of complementarity,xxviii by allowing the Security Council to have an effective veto over ICC actions or through the establishment of a rigid state consent regime.
While the ICC should not give greater power to the enemies of the United States, it also should not put unnecessary strains on the relationships between the United States and its allies. The effectiveness of U.S global leadership is based on its position within formal and informal alliance systems. While U.S. policy cannot be held hostage to the whims or interests of other states, it is important to understand that if the United States is seen as being too far out of the mainstream on an issue of such importance to the international community, then it will inevitably harm the United States’ position of global leadership. Therefore an effort should be made to develop U.S. positions in concert, rather than in conflict, with friends and allies.
Thus the goal of U.S. foreign policy should be the establishment of an international criminal court that can serve as a vehicle for the maintenance and reinforcement of international peace and stability. Establishing an institution that can fulfill such a mission will necessitate that the ICC is a credible and effective institution. Part of the requirements for creating such an institutions will also be drafting the ICC’s treaty in such a way that the U.S. Senate will give its advice and consent to ratification of the treaty. This necessitates that the proposed ICC does not detract from U.S. power, especially regarding the United States’ role within the Security Council.
POLICY VARIABLES
In this section I will describe the four principal policy variables which can be manipulated in the ICC treaty to achieve the desired policy objectives. These are the three trigger mechanisms — an independent prosecutor, the Security Council and the state parties to the ICC treaty — and a state consent regime. I will also briefly evaluate the ramifications of each variable. These elements make up the range of policy variables available in crafting policy regarding the relationship between the Security Council and the ICC. Each of the policy alternatives discussed below combine these four elements differently and the arrangement of these variables distinguishes the alternative policies.
The term “trigger mechanism” refers to the procedure by which cases are brought before the ICC — the mechanisms available to trigger the ICC’s jurisdiction. The three principle trigger mechanisms available to the ICC are an independent prosecutor, a state-based consent regime and the Security Council. Each has distinct advantages and disadvantages.
Independent Prosecutor In most legal systems, cases are triggered by an independent prosecutor. Such a prosecutor conducts preliminary investigations, evaluates the evidence and decides if the evidence warrants proceeding with further investigation. Once enough evidence has been gathered, the prosecutor presents it to a judge, or duly appointed panel,xxix who decides if there is grounds for a trial proceeding. In this arrangement, the
decision to proceed to trial is made by agents of the court, without interference of political bodies. There are elements of this traditional judicial structure in the current draft of the ICC treaty. However, in the ICC model, the prosecutor is not empowered to initiate proceedings independently. In the current draft of the ICC treaty, only states and the Security Council can initiate cases.
There are many who believe that the ICC should follow the traditional judicial structure, with an independent prosecutor empowered to initiate investigations on whatever matter he or she pleases. The Lawyers Committee for Human Rights argues the point as such: “To be effective, the ICC must be — and must be perceived to be — an impartial and independent judicial body whose functioning is guided by a legal rather than a political process. One important means of ensuring public confidence in the ICC process will be to give a qualified prosecutor discretion to initiate proceedings.”xxx Such a regime would ensure that the decisions of the ICC are formulated according to judicial, rather than political, prerogatives. If states believe that the ICC is impartial and evenhanded they are more likely to be willing to submit to its jurisdiction and thus the advantage of such a regime would be that it would bolster the credibility and effectiveness of an ICC.
The independent prosecutor has some significant drawbacks, especially if implemented alone. In a world of sovereign states, states are likely to view such a regime as placing too much power in the hands of an independent prosecutor. As accession to the ICC treaty is voluntary, this would be a disincentive for states to become parties to the ICC treaty. If such a regime were to operate alone, it would preclude the possibility of the treaty gaining the advice and consent of the U.S. Senate for ratification by the United States.
Furthermore, without the support of the Security Council, such a regime would lack effective enforcement mechanisms that could compel states to submit to the court’s jurisdiction and comply with its rulings. Moreover, there is no guarantee that the independent prosecutor will always appreciate the prerogatives of international peace and stability. It is possible that an independent prosecutor could
initiate proceedings in such a way as to undermine the effectiveness of Security Council actions. As one commentator put it, “Those involved in peace negotiations fear that the exposure of human rights violations might interfere with the political process of reaching settlement among warring parties.”xxxi
Furthermore, it is clear that the treaty establishing the ICC could not supersede the U.N. Charter, as the U.S. administration has repeatedly stressed, “The establishment of a permanent international criminal court cannot and will not effectively amend Article 24, or any other article of the U.N. Charter.”xxxii As a result, the Security Council could legally interfere in the ICC’s work unless it specifically declines to assert that right. In this situation, it is possible that the actions of each institution would seriously undermine the effectiveness of the other.
Security Council Currently, the only institution with the authority to create a legal structure to initiate criminal proceedings on the international level is the U.N. Security Council. The second trigger mechanism would be to leave the balance of power unchanged, by empowering the Security Council to decide when and where proceedings should be initiated by the ICC.
The advantage of this approach is that it would put the full weight of Security Council enforcement powers, under Article VII of the U.N. Charter, at the ICC’s disposal. Such powers could provide the ICC with practical mechanisms to secure the cooperation of states in its work. This would ensure the effectiveness of an ICC. Furthermore, given the primacy of the Security Council in matters of international security and peace, such an approach would ensure the Security Council freedom to pursue its goals unhindered by the actions of the ICC. As Ambassador Scheffer has said: “The jurisdiction of the Court will involve many of the conflicts that are very properly within the jurisdiction of the Security Council. We have to find a way to prevent the Court being used deliberately or acting inadvertently to undermine the Council's critical responsibilities.”xxxiii
Although such an approach would enhance the effectiveness of the ICC, it could also undermine its credibility. This is because there is a widespread perception that the Security Council is a politicized body and that giving the Security Council such power would ultimately politicize the workings of the court. Critics contend that “this mechanism would subordinate the ICC to the political considerations of the Security Council, thereby undermining its independence, effectiveness and credibility.”xxxiv Many believe that the lack of a separation of powers between the political and judicial branches would focus too much power in the hands of too few states, concentrating inordinate power in the hands of the five veto-holding Security Council members. There is a perception that this would place the five veto-holders and their allies above the law, giving the impression of an uneven implementation of international law. These perceptions would severely undermine the willingness of states to submit to the ICC’s jurisdiction.
States Parties To The ICC Treaty The third trigger mechanism is that states who are parties to relevant treaties may refer cases to the independent prosecutor. According to Article 25, paragraph 1, of the draft of the ICC treaty, states that are parties to the ICC treaty or parties to the Convention on the Prevention and Punishment of the Crime of Genocide may lodge complaints with the ICC alleging that a crime of genocide appears to have been committed. According to Article 25, paragraph 2, states that accept the jurisdiction of the ICC with respect to a crime may lodge a complaint with the ICC alleging that such a crime appears to have been committed. The only responsibility of the complaining state to corroborate the claim is contained in Article 25, paragraph 3, which declares, “As far as possible, a complaint shall specify the circumstances of the alleged crime and the identity and whereabouts of any suspect, and be accompanied by such supporting documentation as is available to the complainant State.”xxxv
This trigger mechanism would allow cases to be referred to the prosecutor from a wide array of sources. States with very different political systems, cultural perspectives and geo-political positions could refer cases to the prosecutor. Furthermore, states would be free to adopt whatever system they chose to decide how cases were forwarded to the ICC. It is reasonable to expect that, while most states would funnel
such processes through their executive branches, some governments could be moved to bring complaints based on information received by non-state actors, such as political parties, non-governmental organizations, media sources and international organizations. This would open the way for cases to be brought before the ICC as a result of the activities of a wide array of organizations, ranging from Amnesty International and the Communist Party to CNN.
There are some distinct advantages and disadvantages to this trigger mechanism. This mechanism would greatly enhance the accessibility of the ICC. It would ensure a greater diversity of cases would come before the ICC and help to minimize the possibility that cases would be ignored because of perspective or politics. However, there is also a fear that the accessibility of this trigger mechanism would encourage states to use this mechanism to harass or embarrass their enemies or competitors or that it would simply cause an over-proliferation of complaints, legitimate or not.
State-Consent Regime The International Court of Justice operates under a state-consent regime meaning that proceedings can only be initiated after a state has specifically accepted the court’s jurisdiction to do so, either by virtue of a pre-existing agreement with the Courtxxxvi or on a case by case basis. This recognizes that, in a world of sovereign states, the ability of an outside entity to pass judgment over a state’s actions without its consent would infringe on that state’s sovereignty. This reflects the principles in the U.N. Charter, which proclaims, “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.”xxxvii
A comparable state consent regime is enshrined in Article 21 of the current draft of the ICC treaty.xxxviii Article 21 says that the ICC could only establish jurisdiction over individuals accused of violations of human rights if it obtains the prior consent of two involved states: the custodial state, that is the state which has custody of the suspect; and the territorial state, the state on the territory of which the act or
omission occurred.xxxix Furthermore, regarding war crimes and crimes against humanity, states would have the option as to the particular crimes over which they would accept the court’s jurisdiction. No state could evade the court’s jurisdiction regarding genocide, because the Genocide Convention specifically endows an ICC with jurisdiction over this crime.xl
Supporters assert that the state-consent regime would safeguard states’ sovereignty and maximize cooperation between the affected states and the ICC. Once proceedings had been initiated, this would substantially enhance the ability of the ICC to investigate criminal activities, obtain evidence, obtain custody of suspects and enforce its decisions. Furthermore, such a regime would be a guarantee for states that the ICC would not initiate frivolous, politically oriented cases design to harass or embarrass other states. Another benefit is that it would create an institution that could win the advice and consent of the U.S. Senate, thus ensuring U.S. support and participation in the ICC.
One of the drawbacks to this regime is that, because crimes of interest to an ICC are often carried out by agents of the states involved, states might shield guilty parties from prosecution. Such an eventuality would paralyze the ICC in exactly those cases that are of most interest to it.
In policy terms, each of the three policy variables could have both positive and negative impacts on the effectiveness of the ICC.
POLICY ALTERNATIVES FOR THE ICC-SECURITY COUNCIL RELATIONSHIP
In this section, I will review the policy alternatives that are under discussion regarding the relationship of an ICC to the U.N. Security Council. The most important alternatives are the status quo option, the Singapore proposal and the traditional model.xli
Status Quo Option
In the draft treaty, the ICC’s prosecutor could only initiate proceedings regarding situations referred either by the Security Council or by states that are parties to the ICC treaty. If the Security Council is seized of a particular situation, the independent prosecutor would need the Security Council’s permission to proceed with an investigation of that situation. Under the status quo option, the prosecutor has no independent authority to initiate investigative or judicial proceedings.
The ICC draft treaty also creates a strong state-consent regime, in which states would have to give their specific consent to proceedings, as described above. However, if the state involved refused to grant consent, it could be overridden if the Security Council chose to refer the situation to the ICC acting under its Chapter VII powers. In such case, the compulsory nature of the Security Council’s powers would prevail over the denial of consent by a state.
This option gives primacy to the Security Council, which could press for action on a matter. Moreover, any veto-holding Council member could block action by the ICC on a situation either by placing the matter on the Security Council’s active agenda, if the Council were not already seized of that matter, or by vetoing a resolution granting the ICC permission to proceed on that matter.
Singapore Proposal The Singapore proposal — so-called because it was put forth by the Singapore government — alters the balance of power between the ICC and the permanent members of the Security Council in a subtle but important way. The Singapore proposal gives the prosecutor a free hand regarding situations referred by the Security Council or state parties to the ICC treaty, unless the Security Council specifically asks the prosecutor to stay away from a particular situation. In the status quo proposal, a single veto would be enough to deny the prosecutor authority to proceed with an investigation. However, under the Singapore proposal, an attempt to stop the ICC from acting would require a majority in the Security Council and could be scuttled by any of the Council’s permanent members. Thus the Security Council would have to gain a higher threshold of support to deny the ICC access to a particular situation. The Singapore
proposal does not grant the prosecutor independent authority to initiate investigative or judicial proceedings. Also, it would not alter the state-consent regime in the current draft ICC treaty.
Traditional Model The traditional model recreates, on an international level, the way many national judiciaries are organized. This model would empower an independent prosecutor to initiate investigative or judicial proceedings unhindered by restraints imposed by political authorities. Thus, such a prosecutor would not be constrained by a Security Council veto or any form of state consent regime. The Security Council would still have the authority to refer situations to the ICC, as would states that are parties to the treaty the same way they can under the current draft treaty. As a result, the Security Council would effectively relinquish the authority it currently has to control the subject matter jurisdiction of international criminal proceedings and would have to agree not to interfere with the independent prosecutor.
EVALUATION OF ALTERNATIVES
In this section, I will evaluate the three alternatives in light of the primary U.S. foreign policy goal of the maintenance of peace and stability and the three objectives or criteria discussed above: effectiveness, credibility and political feasibility.
The table below summarizes the evaluation of the policy alternatives; a score of 5 implies that the policy attains the U.S. policy goal or objective effectively and a score of 1 means the policy does not. A glance at the table shows that none of these alternatives can achieve all U.S. policy goals and objectives. If one were to total the scores then the Singapore proposal would marginally come out on top. However, given the impact of U.S. participation on the effectiveness and credibility of an ICC, it is understood that an effective outcome cannot be achieved if the alternative is not politically feasible and cannot gain the advice and consent of the U.S. Senate. In this case, if these are the only alternatives then the U.S. administration should choose the status quo option.
Table 1 Summary of Evaluation of Policy Options
Policy Alternatives Status Quo Option
Singapore Proposal
Traditional Model
Goal: Peace and Stability
5
4
1
Goals and
Criteria: Effectiveness
3
5
3
Criteria
Criteria: Credibility
1
5
5
Criteria: Political Feasibility
4
1
1
Scale:
5 - Effectively achieves U.S. goals and objectives; 1 - Does not achieve U.S. goals and objectives
STATUS QUO OPTION Maintaining International Peace and Stability On advantage of the status quo option is that it gives primacy to the Security Council to pursue measures designed to re-establish international peace and stability without unwanted interference from the activities of an ICC. There are often occasions when the prerogatives of peace-building necessitate postponing the pursuit of justice. For example, delicate negotiations to end a war could be jeopardized by efforts to find out the truth about gross violations of human rights. Under such conditions, guilty parties may find the continuance of war and chaos preferable to peace and stability which might allow for criminal prosecutions. Thus the status quo option would effectively allow for the maintenance of peace and stability.
Enforcement and Effectiveness Because of the absolute primacy of Security Council in matters of international peace and security, the Council would always have the authority to interfere in the activities of an ICC and stop an ICC from involving itself in any matter. Thus a pre-ordained, formalized relationship between the two institutions
would disincline the Security Council from interfering in the ICC’s activities. Furthermore, such a regime would allow the ICC to take advantage of the considerable enforcement powers of the U.N. Security Council. These factors would bolster the effectiveness of the ICC.
However, this option also has some significant draw backs. An examination of the active agenda of the Security Council shows that the Council is seized of most matters that would be of interest to an ICC. Furthermore, the Security Council tends to remain seized of situations for many decades. Thus, the status quo option could potentially keep from the ICC those situations that most deserve its consideration. For example, in recent years genocidal activities have been perpetrated by Serbian nationalists and the Khmer Rouge in Cambodia. The Security Council is seized of both of these situations. Furthermore, as the Serbian nationalists are close allies of the Russian government and the Khmer Rouge is a close ally of the Chinese government, it is likely that the veto could be used to stop action on both of these matters. Thus, while the status quo option would bolster the ICC’s effectiveness by giving it access to the Security Council’s enforcement powers, it could also jeopardize the ICC’s effectiveness by keeping critical situations beyond its reach.
Impartiality and Credibility Because this option concentrates power in hands of veto-holding permanent members of Security Council, which could block ICC action, this option is opposed by a majority of the world’s governments. These governments clearly consider that such a provision would damage the ICC’s capacity to carry out its mandate in an impartial and credible manner. Thus the status quo option would harm the credibility of the ICC in the eyes of the world.
Proceeding without the support of the majority of world governments, and without access to most situations of interest, would create an ICC that was ineffectual and ultimately irrelevant.
Political Feasibility
The status quo option is supported by four of the five permanent members of the U.N. Security Councilxlii including the U.S. administration but faces significant opposition from a large number of national governments. The status quo option could win the support of the U.S. Senate. While it is clear that many states may waver in the face of U.S. intransigence on this issue, it is by no means certain that, if the status quo option remains in the final treaty, the United States will be able to win the support of the enough states to become part of the final treaty to make the ICC a viable and effective institution.
Thus, the status quo option rates highly regarding the primary U.S. foreign policy goal of the maintenance of international peace and security. It also rates fairly highly regarding the criteria of political feasibility. However, the policy has mixed ratings regarding the criteria of effectiveness and rates poorly regarding the criteria of credibility.
SINGAPORE PROPOSAL Maintaining International Peace and Stability This proposal recognizes the primacy of the Security Council on issues of international peace and security. While the capacity of the Security Council to protect its policies from the interference of the ICC would be weaker than with the status quo option, the Singapore proposal still allows the Security Council to veto action by the ICC on particular situations.
Enforcement and Effectiveness Because the Singapore proposal creates a formalized relationship between the ICC and the Security Council, it continues to allow the ICC to tap into the Security Council’s powerful enforcement mechanisms. Furthermore, the Singapore proposal makes it much more difficult for the veto-holding members of the Security Council to shield their citizens or allies from criminal proceedings. The Singapore proposal would allow the ICC access to a greater number of the critical cases that would remain beyond its reach under the status quo option.
Impartiality and Credibility Furthermore, this proposal creates enough of a balance between the powers of the Security and the ICC that it has been able to win the support of the majority of the world’s governments. Such a regime would give the Security Council a significant role without compromising the court’s impartiality, which would undermine its credibility and effectiveness.
Political Feasibility At this point, the Singapore proposal has the support of a majority of the world’s governments. However, this proposal also has some significant shortcomings. Because it dilutes the powers of the permanent members of the Security Council, it has failed to win the support of any of the permanent members except for the United Kingdom. It would certainly be opposed by the U.S. Senate, meaning that the United States would not be able to become a part of the ICC. Without the support of the great powers, the ICC is almost certainly doomed to ineffectiveness.
This proposal rates fairly highly regarding the maintenance of international peace and security. Also, it rates highly regarding the criteria of effectiveness and also regarding the criteria of credibility. However, the policy rates poorly regarding the criteria of political feasibility.
TRADITIONAL MODEL Maintaining International Peace and Stability In the on going tension between peace and justice, the traditional model comes down squarely on the side of justice. Thus the traditional model would give primacy to attempts to establish justice rather than peace and stability. While the two concepts are not necessarily mutually exclusive, in a situation where they do suggest different policies, the pursuit of justice would not be compelled to yield to the pursuit of peace. Thus, under the traditional model, the Security Council would not be able to use the prerogatives of peace as the basis for vetoing action by the ICC.
Enforcement and Effectiveness
The traditional model would still allow the Security Council to refer cases to the ICC and would create a formal relationship between the two institutions. However, this relationship would be far weaker than under the previous two alternatives. As a result, the Security Council’s enforcement powers would be less available to the ICC, which would hinder its effectiveness. Under the traditional model no situations would be beyond the scope of the independent prosecutor. Thus the ICC would have access to all situations. This would increase the effectiveness of the ICC.
Impartiality and Credibility Furthermore, the fact that the independent prosecutor would have access to all situations would enforce the impartiality of the ICC and would enhance the ICC’s credibility. States are far more likely to support an ICC that they feel is evenly applying the principles of international law across the board, than one under the influence of the great powers.
Political Feasibility The traditional model is supported by many non-governmental organization and a handful of national governments. However, it faces the opposition of at least four of the five permanent members of the U.N. Security Councilxliii and many other national governments. Furthermore, this proposal would certainly be opposed by the U.S. Senate, which means that the United States would not become a part of the ICC. Without the support of the great powers, the ICC is almost certainly doomed to ineffectiveness.
Thus, the traditional model rates fairly highly regarding the criteria of effectiveness and very highly regarding the criteria of credibility. However, it rates poorly regarding the maintenance of international peace and security and regarding the criteria of political feasibility.
CONCLUSION AND RECOMMENDATIONS
None of these three policy options can achieve all of the U.S. policy goals and objectives according to the criteria discussed above. As a result policymakers will either be unable to achieve critical objectives or they will have to look past these alternatives for a compromise solution. When all sides approach an issue in good faith, there is usually room for a compromise solution. In this case, a compromise should combine the most important elements of the three alternatives.
The language of the compromise alternative would be as follows (additional language in italics):xliv Article 23 Paragraph 3. No prosecution may be commenced under this Statute arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides. For purposes of this treaty, the term seized refers to situations upon which the Security Council has acted, by passing a specific resolution, in a preceding period of time of not less than one year. Article 25 Paragraph 5 Upon receiving information as to the perpetration of crimes within the jurisdiction of the Court, as defined by Article 20, the Prosecutor may initiate investigations of that crime.
This compromise alternative would continue to allow the Security Council and state parties to the ICC treaty to refer situations to the prosecutor. As with the status quo option, the prosecutor could not initiate judicial proceeding regarding a situation of which the Security Council is seized. In the compromise, however, the term “seized� is specifically defined as including a one-year time limit. A year can be a long time in international affairs, long enough for minor threats to international peace to play themselves out and for the gravity of major threats to be revealed. Furthermore, experience shows that a consensus can only be maintained over such a period in situations of true gravity. This introduces an important element of the Singapore proposal. While the Security Council could halt ICC action regarding a particular situation indefinitely, it could only do so after passing a resolution through the Security
Council on that situation annually. So any attempt to stop the ICC from addressing a situation would have to win the support of a majority in the Security Council and could always be scuttled by any one of the Council’s permanent members, just as with the Singapore proposal.
In addition, the compromise proposal would allow the ICC prosecutor to initiate investigations ex officio, or on the basis of information obtained from various sources. This would respond to the concern that the Security Council and states parties do not always have the information, means or political will to follow and respond to cases of gross violations of human rights. As the Lawyers’ Committee for Human Rights’ position paper says, “This will be particularly true for cases in countries outside the political and media spotlight. Considerations of fairness and practicality argue in favor of allowing the prosecutor latitude to initiate investigations.”xlv
As with the other two alternatives, the compromise proposal would not give the prosecutor the authority to initiate judicial proceedings. This would almost certainly make the proposal politically unfeasible. However, in a case where judicial proceedings were stayed as a result of a situation being on the Security Council’s active agenda, there would be no requirement that the investigation be halted. This is important as timely investigation of violations of human rights is essential to preserving evidence that would be necessary if, and when, judicial proceedings are initiated.
Thus the compromise combines the most beneficial elements of the three existing policy alternatives. The fact that the Security Council could veto ICC action means that is it probable that the proposal would be acceptable to the U.S. Senate and other governments and would therefore be politically feasible. The fact that it would require a positive vote in the Security Council to deny the ICC access to particular situations indefinitely means there is a good chance that the compromise will be supported by the majority of the world’s governments, which would give the institution credibility. Furthermore, the fact that the proposal establishes a formal relationship between the ICC and the Security Council would make the ICC more effective as it could tap into the Security Council’s formidable enforcement powers.
Thus this proposal would appear to fulfill the principal three objectives of U.S. foreign policy, that the ICC be credible and effective and that the ICC treaty be ratifiable.
Table 2. Summary of Evaluation of Compromise Proposal
Compromise Proposal
Goals and Criteria
Goal: Peace and Stability Criteria: Political Feasibility Criteria: Effectiveness Criteria: Credibility
Scale:
5 5 5 5
5 - Effectively achieves U.S. goals and objectives; 1 - Does not achieve U.S. goals and objectives
Therefore, this report recommends that the U.S. administration propose and pursue acceptance of the compromise language suggested above.
In this report, I have argued that the primary goal of U.S. foreign policy, in relation to the ICC, is the maintenance of international peace and stability. I have also argued that, in order for the ICC to be an effective tool for the maintenance of international peace, it will have to be effective and credible and above all it will have to be politically feasible. Analyzing the three most important policy alternatives regarding the relationship between the ICC and the Security Council in light of these objectives, I have concluded that, while the status quo option is the most desirable alternative for the United States, it still has some significant draw-backs. As a result, I have constructed a compromise policy option that combines elements of the three alternatives to produce a policy capable of effectively achieving U.S. foreign policy goals. This compromise option gives the Security Council a temporally limited veto over the ICC’s activities. It also increases the ICC’s prosecutors authority to initiate investigative proceedings without further authorization from states or the Security Council.
This report recommends that the U.S. administration actively and aggressively pursue adoption of this compromise option. In dealing with states that favor the status quo, the administration should emphasize the continuance of the Security Council’s veto. With states that favor the Singapore proposal, the administration should emphasize how the compromise option utilizes the mechanisms in that proposal to limit the effect of the veto. To states that favor the traditional model, the administration should emphasize how the power of the prosecutor to initiate investigations would ensure the protection of key evidence regarding atrocities. The U.S. administration should attempt to have the United Kingdom act as the sponsor of the proposal because many states suspect U.S. objectives for U.S. sponsorship to be effective. As a veto-holding permanent member of the Security Council and a strongly progressive advocate of the ICC, the United Kingdom has the credibility with all sides.
We are on the verge of an extremely important development in international law. Such an opportunity will not come our way again for a long time and we cannot afford to fail in our task. As we approach the cusp of a new millennium, the establishment of an institution that can effectively hold individuals responsible for the worst violations of human rights would take international law to a whole new level and would be a meaningful legacy of this generation to the future. Within this vision, the relationship between the ICC and the Security Council will be pivotal and central to the effectiveness and credibility of the institution. The U.S. administration must carefully and intelligently press for the adoption of policy that can create an institution that is a worthy bequest to future generations.
.
iEND
i
NOTES
All references to the draft ICC treaty refer to the Draft Statute for an International Criminal Court prepared by the International Law Commission and presented to the United Nations General Assembly on September 1, 1994. 2 Lawyers’ Committee for Human Rights, “The International Criminal Court — Trigger Mechanisms and the Need For An Independent Prosecutor, ” New York, July 1997. iii There are several reasons why the ICC would not be directly tied to the U.N. The primary reason is that in order to do so, to ICC Charter would have to be incorporated into the U.N. Charter, as is the case with the International Court of Justice. This would entail a revision of the U.N. Charter. This would be such a hugely complicated process, that attempting such a feat would certainly delay the establishment of an ICC for several decades. Another reasons why it is envisioned that the ICC would not be directly tied to the U.N. is that the credibility of the U.N. is at an all-time low at the moment and such an association may hinder the effective workings of an ICC. Furthermore, the U.N. is currently undergoing a financial crisis brought about by the refusal of key states, including the United States and Russia, to pay their dues. Directly tying the two institutions may create instability within the ICC which would not be conducive to effective judicial proceedings. iv Article 103 of the U.N. Charter states, “In the event of a conflict between obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.“ v See Appendix III for the complete text of Article 23. vi “Seized” is the term most commonly used in international affairs to denote when an international body has accepted a particular issue or situation as part of its active agenda. vii China, France, Great Britain, Russia and the United States are the five veto-holding permanent members of the Security Council. viii United Nations General Assembly Resolution 95(I), adopted on December 11, 1946. ix Address of Benjamin Ferencz at Pace Law School, “The Sloan Lecture — International Criminal Courts: The Legacy of Nuremberg,” on November 17, 1997. x Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the U.N. General Assembly on December 9, 1948. xi Address of President Bill Clinton at the U.N. General Assembly on September 22, 1997. xii For more details of relevant Congressional actions, see Appendix I, “Recent U.S. Legislative Developments Regarding ICC.” xiii Resolution 118B, passed at the February 1998 House of Delegates meeting of the American Bar Association. xiv For brief profiles of interviewees, see Appendix II. xv State Department, U.S. National Interests and Strategic Goals, (Washington, D.C., Government Press, 1996), p.1. xvi Morgenthau, Hans, Politics Among Nations: The Struggle for Power and Peace, (New York: Alfred Knopf), 1978, p. 238. xvii Thompson, Kenneth, Ethics and International Relations, (New Brunswick: Transaction Books), 1985, p. vii. xviii Address by Ambassador David J. Scheffer at the Association of the Bar of the City of New York, “Reconciling Accountability for Human Rights Atrocities with Conflict Resolution,” February 5, 1998. xix Address by Ambassador David J. Scheffer at Washington College of Law, American University, Washington, D.C., March 31, 1998. xx Specter, Arlen, “War Crimes Fighters,” in Pittsburgh Post-Gazette, January 25, 1998. xxi Chapter VI of the U.N. Charter deals with the Security Council’s role in the pacific settlement of international disputes and conflicts. Chapter VII deals with the Security Council’s range of powers regarding enforcement of its mandates. Article 42 of Chapter VII empowers the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” According to the U.N. Charter this is the only time that the use of force is justifiable under international law, except in the case of self-defense. xxii Stork, Joe, “International Criminal Court,” in Foreign Policy In Focus Magazine, Volume 3, Number 4, April 1998, p.2. xxiii Schachter, Marvin, “The International Criminal Court: An Idea Whose Time Has Come...Maybe,” in Our World, Volume 1, No. 16, October 1997. xxiv Address by Ambassador David J. Scheffer to the Southern California Working Group on the International Criminal Court. at the Biltmore Hotel, Los Angeles, California, February 26, 1998. xxv Senator Jesse Helms expressed this position in a letter to U.S. Secretary of State Madeline K. Albright, dated March 26, 1998. Helms also expressed the concern that the ICC should be an independent institution that is not under the
direct control of the United Nations. However, this aspect is beyond the scope of this report. In this report, I am making the assumption that Helms will stick to his word that he will support the establishment of an ICC as long as it does not harm U.S. interests in the ways outlined here. This is not absolutely clear and there are those who believe that Helms is unalterably opposed to the establishment of an ICC. I have made this assumption based on the fact that Helms presided over the ratification process of the Genocide Convention, which has comparable goals to the establishment of an ICC, based on his pronouncements on the matter have indicated that these are his conditions for supporting an ICC and based on the opinions of those close to the issue, especially John Washburn (see interviewee profiles). xxvi Address by Ambassador David J. Scheffer at the Association of the Bar of the City of New York. xxvii Schmitt, Eric, “Pentagon Battles Plans for International War Crimes Tribunal,” in The New York Times, April 14, 1998. Complementarity is the idea that the ICC is designed to complement, not replace, national judicial systems. The jurisdiction of the ICC would only be activated in cases where the national judicial system is either unwilling or unable to take action. Thus if complementarity works there would never be any need for the ICC to exert jurisdiction over U.S. citizens because, by all reasonable standards, the U.S. judicial system is effective and functioning. xxix This is known as a Grand Jury in the United States, although it has other name is other legal systems. xxx Position Paper of the Lawyers’ Committee for Human Rights, July 1997. xxxi Weiss, Thomas, Humanitarian Challenges and Intervention: World Politics and the Dilemmas of Help, (Oxford: Westview Press), 1996, p. 111. xxxii U.S. Mission To The United Nations, “U.S. Statement on the International Criminal Court,” 51st U.N. General Assembly, Sixth Committee, October 31, 1996, p.3. xxxiii Address by Ambassador David J. Scheffer to the Southern California Working Group on the International Criminal Court. xxxiv Pejic, Jelena, “The Tribunal and the ICC: Do Precedents Matter?,” in Albany Law Review, Volume 60, Number 3, 1997. xxxv See Appendix III for complete text of Article 25. xxxvi Known as an optional protocol. xxxvii Article II paragraph 7 of the U.N. Charter. xxxviii See Appendix III for complete text of Article 21. xxxix In some cases the ICC would have to get the consent of a third state. If the custodial state had received and agreed to an extradition request from third state, then the ICC would also have to receive the consent of the requesting state. xl Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide grants jurisdiction for the crime of genocide to “such international panel tribunal as may have jurisdiction.” Furthermore, the International Court of Justice has acknowledged that the obligations arising from this Convention are universal and as a result any judicial institution can assert jurisdiction over them. [Judgment of the International Court of Justice in the Case of BosniaHerzegovina vs. Yugoslavia: General List Number 91, “Case Concerning Application of the Convention of the Prevention and Punishment of the Crime of Genocide, ”Paragraph 31, July 11, 1996]. xli See Appendix III for complete text of Articles of the ILC draft ICC treaty that contain the status quo option as well as the full text of the Singapore proposal. xlii The status quo option is supported by the United States, France, Russia and China. The United Kingdom is the only permanent member of the Security Council that does not support this policy. xliii The traditional model faces the certain opposition of the United States, France, Russia and China. The United Kingdom has not yet made its position clear regarding such a policy. xliv Additions to the original language of the draft ICC treaty is in italics. There is no language deleted from the original text. This compromise alternative builds on ideas drawn from various sources including those floated by the government of Greece as well as those expressed by Sienho Yee in his article; Yee, Sienho, “A Proposal to Reformulate Article 23 of the ILC Draft Statute for an International Criminal Court, in Hastings International and Comparative Law Review, 529, (1996). xlv Position Paper of the Lawyers’ Committee for Human Rights, July 1997. xxviii