A case for universal jurisdiction
TESSY HUSS
The newly established International Criminal Court (ICC) constitutes the single most important concerted effort at abolishing impunity. The author of this week’s focal article argues in favor of the growing importance and authority of the ICC. The evidence cited, however, does little to distract from the fundamental problem inhibiting the full realisation of the ICC, namely that impunity could be better assured were the ICC’s mandate expanded and based on the principle of universal jurisdiction.
As it stands, the ICC does not operate on the basis of universal jurisdiction (Roth 2001, Ryngaert 2010). Universal jurisdiction, as referred to in this paper, is defined as criminal jurisdiction severed from territorial and nationality principles and solely granted on the basis of the ‘heinous’ nature of the crime. The court’s power comes close to, but remains distinct from universal jurisdiction in the areas of “suspected genocide, crimes against humanity and war crimes committed in any member state when that state is ‘unwilling or unable’ to do so”. Initial negotiations setting up the ICC demanded that the court be endowed with universal jurisdiction met with ferocious opposition from the United States (US) (Mayerfeld 2003, Neumayer 2009). As a result, the ICC has been conceived as a court of last resort whose jurisdiction is restricted to the principles of territoriality and nationality (Mayerfeld 2003; Ryngaert 2010). As such, the powers of the ICC do not apply to non-signatories. However, in extraordinary instances, this principle may be overruled if a non-signatory grants ad-hoc jurisdiction to the court or upon referral of a case by the UN Security Council (Ryngaert 2010). It is precisely this set up which undermines the ICC’s importance in international criminal justice.
Arguably the most important obstacle to effective prosecution pertains to the court’s limited membership. For one, the majority of African and Arab countries are non-signatories. While it is true that international criminal law is beset by a certain pro-western bias, it is also true that a disproportionate number of crimes against humanity have been and continue to be committed outside of Europe and the Western world. Even more critical, however, is the fact that three of the world’s most significant powers have not signed up to the Rome statute and as such do not recognise the ICC. The possibility that one of the P5 may veto the prosecution of human rights violators (if this would jeopardise the continuation of strategic alliances) must be redressed. As energy resources grow scarce, China for example has been courting African dictators. Similarly, the US maintains good relationships with African and Middle Eastern dictators. Thus unilateral or multilateral endorsement for prosecutions of (former) political leaders guilty of human rights violations is inevitably contingent upon geopolitical interests (Bassiouni, 2006). The selection bias applied by the major powers as well as their general lack of support for the ICC significantly undermines the court’s ability to deliver justice. If universal jurisdiction were granted to the ICC it would allow the court to prosecute those currently shielded by their state’s decision not to sign up or unwillingness to prosecute the perpetrators.
On the “pitfalls of universal jurisdiction”, Kissinger (2001) argues that universal jurisdiction could be abused as an instrument of political power by any state in trying any political leader irrespective of whether that particular country has suffered first-hand or indirectly from political misuse. At the same time, however, does it really matter who makes the accusation if they are warranted? Does it matter whether the accuser has directly suffered or not? The exercise of universal jurisdiction is much more contentious if practiced by national courts rather than by a delegation of international judges. The political bias could be circumvented for the ICC has been been set up as an independent body with no formal ties to the Security Council. Moreover, if the mandate of the ICC were to be expanded beyond its current purview, this would significantly decrease the number of small-scale human rights violations that go unnoticed and unprosecuted (Mayerfeld 2003). Kissinger’s objections are in line with the US stance more generally. Successive US administrations have been extremely wary about what the establishment of a permanent international criminal court would entail for the actions of its own citizens, notably key political, military and security officials (Mayerfeld 2003).
Roth (2001) comments on the ambiguity of the US position given that the Rome statute subsumes much of the language and content of US backed treaties and Pentagon military manuals. Irrespective, however, of US justifications not to re-sign the Rome statute, the fact remains that ultimately the success of the ICC is dependent upon US moral and economic support. One major limitation faced by the ICC pertains to its reliance on external funding and national cooperation to comply with extradition requests (Mayerfeld 2003). Furthermore, as an international organisation opposed by the majority of the P5, the ICC has little prospects of enhancing its credibility on the African continent. Despite the Obama administration’s rapproachment with the ICC, the reality remains that the US has still not signed the treaty (Fairlie 2011).
The author of the focal article seems to believe that every successful trial and symbolic and/or rhetorical act by would-be signatories and alleged supporters of the ICC enhance the courts credibility and with that its deterrence effect. The evidence cited seems to suggest the existence of some socialisation mechanism inherent to Katherine Sikkink’s (2010) justice cascade. A study conducted by Sikkink and Kim (2010) shows that international prosecutions have had a positive effect on human rights protection beyond the country under a past or current wrath of a tyrant. They find that the threat of punishment as well as normative pressures deter potential human rights violations. While these finding are an extraordinary testimony to the effectiveness of the ICC as a means of transitional justice, the net effects upon international accountability accrue but slowly and incrementally. In order to fully bare its teeth, the ICC should be endowed with universal jurisdiction and a broader mandate.
Bibliography
Bassiouni, M.C., 2006. ‘The ICC – Quo Vadis’ in Journal of International Criminal Justice, Vol. 4, pp. 421-427.
Fairlie, M. 2011, ‘The United States and the International Criminal Court Post-Bush: A
Beautiful Courtship but an Unlikely Marriage’ in Berkeley Journal of International Law, vol. 29, no. 2, pp. 528-76
Kissinger, H. 2001. ‘The Pitfalls of Universal Jurisdiction’, Foreign Affairs (July/August), pp. 86-96.
Mayerfied, J., 2003. ‘Who Shall be Judge: The United States, the International Criminal Court and the Global Enforcement of Human Rights’ in Human Rights Quarterly, vol. 25, no. 1, pp. 93-129
Neumayer, E., 2009. “A New Moral Hazard? Military Intervention, Peacekeeping and Ratification of the International Criminal Court” in Journal of Peace Research, Vol. 46, No. 5, pp. 659-670.
Roth, K. 2001. ‘The Case for Universal Jurisdiction’ in Foreign Affairs (July August), pp. 150-154.
Ryngaert, C., 2010. ‘The International Criminal Court and Universal Jurisdiction’ in Leuven Center for Global Governance Studies Working Paper, No. 46, pp. 3-14. [online]. Available at: http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp41-50/wp46.pdf. Last accessed: 03/02/2012.
Nice article! The only problem I have with this piece is its apparant dismissal of the ICC’s political context. I think few cosmopolitan thinkers would disagree that an ICC not bound or influenced by major powers (par 4), and with a wide-ranging mandate (par 1) would be a positive development. The real problem is coming as close as possible to this vision in a world where states are loath to give up judicial sovereignty, abuse international organisations for political purposes (e.g. UNHCR), and have patchy human rights records.
To highlight one of a number of possible examples, in the third paragraph Tess argues that granting universal jurisdiciton would allow the Court to prosecute those “currently shielded by their state’s refusal to sign up or unwillingness to prosecute.” Later, however, Tess acknowledges that the Court is limited by the need for national cooperation in complying with extradition requests. For the Court to be effective, then, state support is important in addition to the formal legal mandate. To the extent that broadening the latter decreases the former, there is no reason to be confident the Court will be better off with highly contentious new jurisdictional powers.
I am as annoyed as anyone by statesmen hindering international justice for dubious reasons. However, unless we take the existence of shady characters like mr Kissinger into account, ICC reform may backfire.
At the risk of offering a messy comment after Henk’s delightfully clear-cut observation, I would like to point out a few more things!
Tessy’s response to this week’s focal article accurately points to the crux of the debate surrounding the ICC; the puzzle of universal jurisdiction. The ICC has so far fallen short of becoming a part of the international system, as the concept of universality continually eludes its jurisdiction.
The lack of universal jurisdiction does indeed “undermine the ICC’s importance in international criminal justice”. This argument can perhaps be clarified as a concern for the lack of a codified international criminal law. The basic maxim of European legal thinking springs to mind; “no crime, no punishment without previous penal law”. In the absence of a universally recognized legal framework, it is not feasible to legitimately combat and abolish impunity worldwide. Nonetheless, the principal goal of the ICC is far from unattainable. Favorable arguments relating to the ICC- and many such supranational institutions- can be anchored in the standpoint of modernization theory. The dialectical progression of international regimes is empirically observed in the past century, and this is nothing less than promising for their future. Tessy’s reference to Sikkink’s “justice cascade” seems to situate her argument precisely in this school of thought, reinforcing and vindicating her argument.
The issue of limited membership, particularly U.S. non-acceptance of universal jurisdiction is indeed the main handicap of the ICC. As long as the U.S. open-ended military doctrine is unbounded by law, other less powerful states are less likely to cooperate with the ICC. The “pitfalls of universal jurisdiction” that Kissinger (2001) outlines appear to be oriented towards short-term U.S. foreign-policy goals and overlook the impact of the ongoing natural evolution towards universal values. Besides, many of these arguments are negated by Roth (2001) with sound legal rebuttals.
In view of realpolitik, the ICC could incentivize membership (some of the safeguard clauses demanded by Kissinger perhaps) so as not to pose an existentialist threat to powerful states, though appeasing such behavior is hard to justify normatively.
Just like Tessy, I feel that the criticisms over ICC as a “Western imperialist tool” are destructive to the telos of the ICC. Certainly, the ICC is not beyond improvement as an institution. Complementary and specificity are solutions proposed by the ICC. The benefits of successful implementation (beyond ratification) is seen in the South Africa example.
As debated in the focal article, African states do lack sufficient infrastructure to deal with certain cases and those before the court today were referred by the African states themselves. So as Mendes points out “they could not be regarded as unilateral external intervention”(Mendes 2010: 168). It is however important to ensure that the African people are not reduced to “observants of their own fate”, so that the sensitive balance can be maintained between peace and justice (Goldstone 2009: 7) . We should try harder to grasp traditional concepts of restorative justice and community values, most notably ‘mato oput’, that seem strange to Western eyes.