On 30 November 1998, Britain signed the Rome Statute, an international treaty that establishes a permanent International Criminal Court (ICC) at the Hague in The Netherlands. On 25 August 2000, the Government published its Draft International Criminal Court Bill, the legislation necessary to enable the UK to meet its obligations under the treaty, and to play an active role in the processes of the ICC. This legislation is, without doubt, a landmark in the development of international law in the UK. Foreign Secretary Robin Cook said: “We have long argued that there should be an international court on a permanent basis which can hold dictators to account. For 50 years the international community has discussed this. We are now on the verge of the historic step of making it reality.” (The Times, 26 August.)
So what exactly is the ICC, and what will the draft legislation mean for the UK?
BACKGROUND OF THE ICC
The trials at Nuremberg confronted the grim truth that crimes against international law are committed “by men, not by abstract entities”. Ever since then, it has been debated whether individuals can truly be subjects of international law, whether the defendants at Nuremberg were charged with offences which did in fact exist, and whether anyone or everyone had the jurisdiction to try them.
The Geneva Conventions confirmed the principle that individuals can be the subjects of international law, at least as regards international crime. The conventions were subsequently incorporated into UK law, and the same process was repeated in the 1980s in relation to the Torture Convention. However, jurisdictional questions remain. The International Court of Justice at the Hague handles cases between states, not between individuals. An international criminal court calling individuals to account for human rights abuses has been called the “missing link” in the international legal system.
After 1950, during the Cold War years, the idea of “international” crimes being tried in an international court rather disappeared from the spotlight. Recently, atrocities in the former Yugoslavia, Rwanda and Sierra Leone have injected the topic with a renewed sense of urgency. This time, however, the threat is not so much from an international conflict as from internal aggression that goes unpunished by the nation state. The challenge to the international community is how to deal with dictators acting within their own territories. So far, its response has been the setting up of ad hoc tribunals to deal with specific situations.
These tribunals have, though, brought their own problems. Their mere existence has produced accusations of selective justice – if we have tribunals for Yugoslavia and Rwanda, why not a tribunal dealing with the killing fields of Cambodia?
The tribunals are expensive, and their temporary nature inevitably restricts the scope of their inquiries. In Rwanda, for example, thousands of people are alleged to have been killed in the last year. These deaths do not come under the remit of the Rwandan tribunal, whose brief is to investigate only up to a cut-off date of 1994.
The ad hoc tribunals are also open to the criticism previously made of the trials at Nuremberg; because they are set up after the event, they raise the suggestion not of “natural”, but of the “victor’s” justice being imposed. There must be real value in a permanent body that is free of such suggestions, and which can act as a deterrent to anyone, of whatever nationality, position or rank, and which can take jurisdiction when national courts are unwilling to do so.
There are, of course, practical problems with the idea of an international criminal court, which must not be overlooked. First, up to now, the US and China refuse any involvement. The US is reluctant to cede authority over its own nationals, and since it is expected to intervene in humanitarian catastrophes, the US government views its soldiers as being particularly vulnerable to the potential jurisdiction of the ICC. Had the US been an enthusiastic supporter, no doubt the court would be seen by some as the imposition of moral standards by the more powerful states. Because it is not, we must doubt the effectiveness of the court if it is forced to operate without the support of the superpower most heavily involved in international humanitarian missions, and without the approval of two of the five permanent members of the UN Security Council.
There are real challenges facing the ICC in ensuring that it is – and that it is seen to be – impartial and independent of the UN, and that it assuages the fears of the US.
THE ROME STATUTE
The function of the Rome Statute is twofold. First, it codifies a wide range of criminal offences, reflecting the provisions of existing conventions, and for the first time it also codifies the mens rea requirements of the offences, and the defences available to anyone tried for such crimes. Second, it creates a dual jurisdiction, ensuring that the problems faced by Nuremberg are resolved.
The result is a lengthy and complex document dealing with the specific offences with which the ICC will be concerned – namely, the court’s jurisdiction and its procedures and rules.
Two features of the statute serve to emphasise its contemporary status: first, the treaty specifically encompasses crimes committed in armed conflict that are not of an international character, as well as international disputes. This simply reflects the reality of the challenges facing the international community in the present day and the developments in international law. As noted earlier, recent large-scale abuses of human rights have come about through internal conflicts, and not as a result of internationally waged wars. It was acknowledged by the War Crimes Tribunal of former Yugoslavia in the Tadic II case that crimes against humanity do not require a connection to international armed conflict. They may not even require a connection to a conflict at all.
Article 27 of the statute provides that the doctrine of sovereign immunity does not apply to the activities of the ICC. In other words, no individual can escape justice at the hands of the ICC on the basis of their position of authority. That provision is of particular interest following the recent debate over sovereign immunity in the Pinochet case.
THE SPECIFIC OFFENCES
The ICC will have jurisdiction over four types of offences, listed in Article 5 of the statute: genocide, crimes against humanity, war crimes and the crime of aggression. Two points should be made here: first, that the crime of aggression has yet to be defined by the ICC, and as such is something of a non-event at the moment; second, the definitions given to the crimes by the Rome Statute (and adopted by the draft bill) are wider than might at first be anticipated, significantly wider than were applied at Nuremberg, and certainly imprecise by the standards of domestic legislation.
The definitions of genocide and crimes against humanity perhaps require little explanation – their legal descriptions are much as might be imagined by the uninitiated. Both require widespread activity against a large number of people. The definitions of war crimes, however, are numerous and wide-ranging. As a result, any complacency in the UK that the provisions of the statute are unlikely ever to apply to a British national should be dispelled.
Take, for example, paragraph 2(b)(iv) of Article 8, which defines a war crime as “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
The description brings to mind recent experience of bombs which proved not to be quite as “smart” as expected, resulting in the loss of civilian life during bombing raids aimed at military targets. Whether such activity is “excessive in relation to the concrete and direct overall military advantage anticipated” is (and was) a matter of debate. It is, until now, a debate that has taken place in the Security Council of the UN and among the military leaders involved in UN missions. This statute brings another legal personality into play – the ICC. The US is the country with perhaps the most obvious concerns in this area, but any state that plays an active role in international military action may have cause for concern at the wide potential ambit of such a definition. At the very least, there should be an appreciation that the provisions of the statute apply to “humanitarian” forces just as much as they apply to a dictator.
Due to the difficulties in arriving at a generally accepted definition of terrorism, that crime remains one notable omission from the list mentioned in Article 5. Crimes such as those of the Lockerbie bombers would not, therefore, come under the jurisdiction of the ICC.
THE JURISDICTION OF THE ICC
The question of whether a case can come before the ICC is determined by two factors: whether or not the ICC has jurisdiction, and whether or not the case is admissible.
The court will not have retrospective jurisdiction. It will be able to investigate crimes committed by nationals of, or on the territory of, the states that are party to the court. To this extent, it simply reflects two of the oldest principles of jurisdiction – the nationality principle and the territorial principle.
That jurisdiction will not, of course, provide an answer in the case of dictators committing crimes on their own territories. It seems unlikely that a dictator would ratify a treaty that allowed for him to be hauled up in front of the ICC. In that eventuality, the ICC will have to fall back on its jurisdiction on the basis of a referral from the UN Security Council. With such a referral, the ICC has jurisdiction over crimes committed anywhere and by anyone. There is no need for the states with territorial and national jurisdiction to be parties to the statute.
It is anticipated that the Security Council referral route to the ICC (referred to by the US as “Track One”), will indeed be the basis of jurisdiction most effective in confronting large-scale human rights abuses in the future. It is that route which will be needed for a future Yugoslavia or Rwanda. So, will the ICC really bring about change in the prosecution of international human rights abuses? Track One is effectively the system already in place. The refusal of two of the five permanent members of the Security Council to back the ICC becomes even more significant.
Regarding the question of admissibility: where an alleged offence is under the jurisdiction of the ICC, it might still be deemed inadmissible under the terms of the Rome Statute. The relevant principle is that of complementarity – the ICC is complementary to the national courts. The ICC will therefore only take jurisdiction over an alleged crime if it finds that the states directly involved have failed genuinely to investigate and prosecute the offence.
This principle is worthy of close examination, since it is this which apparently protects the sovereignty of states to deal with their own nationals. Put simply, a case is inadmissible where it is, or has been, investigated by a state with national or territorial jurisdiction. The ICC will bring prosecutions only where the relevant national courts are “unwilling or unable” to deal with the matter themselves. This is the international community’s answer to US fears that its soldiers will be subject to politically-motivated prosecutions. In other words, so long as the US itself is prepared to investigate and prosecute alleged offences, there will be no need for the ICC to step in.
There is, however, no definition of “unwilling or unable”, and the subjective nature of any interpretation of such a phrase must give some substance to the concerns of the US.
Take, for instance, the smart bombs referred to earlier. The US and the UK decide that the incidental effects of the bombing campaign are a necessary evil, justified by the greater good of the operation as a whole. What if the ICC does not agree? A failure by US or UK courts effectively to investigate and prosecute the “offence” could result in them being declared “unwilling” to deal with the matter, and the case would therefore become admissible before the ICC.
THE UK DRAFT BILL
The purpose of the UK Draft Bill is to enable the UK to fulfil its obligations under the Rome Statute. It adopts the definitions of crimes given in the statute, and includes provisions for the criminal responsibility of commanders and superiors. Specifically, it incorporates into our domestic law all of the Article 5 crimes so that they can be tried in the UK. In theory, then, it ensures both that UK courts and law-enforcement agencies are able to cooperate with the ICC, and that its nationals can be tried here in the event of allegations of crimes under Article 5.
Ensuring that UK courts can cooperate with the ICC, however, gives rise to a sizeable range of procedural requirements. The UK must be able to respond to requests from the ICC for the arrest, detention and delivery of suspects. In fact, the draft bill goes further, since it makes provision for offenders convicted by the ICC to serve their sentences in UK prisons.
Clauses 3-6 of the bill deal with the procedure for when the UK receives a request from the ICC for the arrest of a suspect. It would be fair to say that the competent UK court before which the suspect is brought under an ICC warrant has fairly draconian powers.
First, it need be satisfied of only two things: that the police have arrested the right person, and that the arrest warrant originates from the ICC. If those two requirements are met, then the court must order that the person be delivered into the custody of the ICC. Under Clause 6(5), the only challenge that an accused person can make (before the ICC) while remanded in UK custody is a challenge to the jurisdiction of the ICC. It is spelled out in the bill specifically that the UK court dealing with the suspect does not have to be satisfied of the evidence against him before sending him to the ICC.
Second, there is a presumption against bail. Clause 14 of the draft bill deals with custody, bail and related matters concerning the arrest of suspected criminals. It states that a competent court shall not grant bail unless it is satisfied that: given the gravity of the alleged offence or offences, there are urgent and exceptional circumstances justifying release on bail; and that any necessary measures have been taken – or will be taken – to secure that the person will surrender to custody in accordance with the terms of their bail.
The phrasing of Clause 14 has been lifted straight from the Rome Statute. There must be some concern that the presumption against the grant of bail included within it is not compatible with the Human Rights Act 1998. This concern is particularly relevant in the light of the Law Commission’s recent recommendation (albeit provisional) that the exceptions to the right to bail under Section 25 of the Criminal Justice and Public Order Act 1994 should be amended. Section 25 allows bail to be granted only in “exceptional circumstances”, and the Law Commission’s concern was that a court would interpret the provision to mean that it had, in effect, no real discretion on the issue of bail. Such a conclusion, the commission decided, would be incompatible with the human rights legislation. Since Clause 14 of the draft bill allows the grant of bail only in “urgent and exceptional circumstances”, the same concerns must surely apply.
The treaty is potentially a landmark, but its significance will be greatly diminished if the US and China do not sign.
Also, there are grounds for concern as to the imprecise formulation of a number of grave offences, and the likely divergence of view as to the ends justifying the means, and the powers of the ICC in relation to the delivery of suspects and the proposed restrictions on the right to bail.
And finally, there must be real doubts, despite the Foreign Secretary’s assurances, whether dictators will be brought before the ICC any more easily than before its ad hoc predecessors.
David Farrer QC is head of chambers and Jenny Carter-Manning is a tenant, both at 7 Bedford Row.