1. Introduction
The UN Security Council exerts considerable control over the jurisdiction of international criminal tribunals. While the concrete methods for exercising such control differ among judicial settings, all serve to exclude cases related to alleged grave crimes by actors whose activities in situations of which the Council is seized are supported by permanent members of this political organ. The capacity of this political organ to determine whose crimes will and will not be investigated and prosecuted before international criminal tribunals raises concerns about judicial independence. More specifically, it points to the lack of respect for the legal constraints imposed on the conduct of political organs, preventing them from undermining the power of international criminal tribunals to decide on the selection of cases in a manner consistent with basic principles of human rights and the rule of law. In particular, politically imposed restrictions that lead to unjustified unequal treatment before the law and the courts of perpetrators and victims of grave crimes are contrary to the principles of equality and non-discrimination. In this light, it is argued that an approach to judicial independence must extend to a consideration of the legality of this control and acknowledge it as an essential requirement of independence.
This article's more detailed argument is structured as follows. The article first traces the UN Security Council's involvement with international criminal justice over time (1993–2014). Its main finding is twofold. Following the creation of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the ad hoc International Tribunal for Rwanda (ICTR), with the exception of the Special Tribunal for Lebanon (STL), the Security Council has distanced itself from the constitutive moment of international criminal tribunals. Meanwhile, it has come to manifest an ever-growing interest in determining and restricting the jurisdiction of these judicial organs (section 2). Thereafter, this article will discuss the question of the compatibility of this control with the requirements of judicial independence. The point of departure for this discussion is the distinction between the personal and the institutional aspects of judicial independence. This analysis centres on the international legal approaches to the institutional dimension of international judicial independence which have developed over the last decade. It takes a special interest in, and cautions against, the now dominant legal opinion which stresses the need for compromising some of the ideals associated with the institutional aspect of independence, and the importance of accepting the political control exerted by the Security Council (section 3). Next, the study contrasts these approaches with that established in international human rights law and jurisprudence. It also articulates the ultimate purpose and specific meaning of the human rights-based requirement related to political control (section 4). The subsequent section of this article discusses the possibility and desirability of extending the human rights requirement related to political control to the international judicial context, with some minor revisions. In the course of this discussion, it provides an account of the legal constraints imposed on the Council's engagement in the area of international criminal justice. It also considers the question whether the exclusion of certain actors from the reach of international criminal tribunals might be justified. Thereafter, it gives attention to the problem of enforcing the human rights approach to institutional independence (section 5). The final section concludes (section 6).
2. The nature and extent of the UN Security Council's engagement
The easing up of traditional Cold War politics in the beginning of the 1990s and onwards created unprecedented opportunities for the members of the Security Council to act in concert in response to new international security threats, including situations of mass atrocities (genocide, crimes against humanity, and war crimes). Between 1993 and 2014, the Council recognized in a successive manner that such situations may constitute the kind of threat to international peace and security that activate its mandatory powers established in Chapter VII of the UN Charter. In prescribing a way forward, it ordered that the perpetrators of such atrocities be brought to justice. Through the adoption of Chapter VII resolutions, it created the ICTYFootnote 1 and the ICTRFootnote 2, and requested that the UN Secretary-General negotiate an agreement with the Sierra Leonean government about the establishment of an independent special court.Footnote 3 It also gave the UN transitional administrations broad mandates allowing them to constitute panels composed of international judges within existing national judiciaries (East TimorFootnote 4 and KosovoFootnote 5). In 2005, the Council referred the Darfur situation to the International Criminal Court (ICC).Footnote 6 A year later, it requested the UN Secretary-General to negotiate an agreement with Lebanon on the creation of a special tribunal in response to the terrorist attack on 14 February 2005 that killed former Lebanese Prime Minister Rafiq Hariri and 22 others, an agreement that entered into force as a result of a Council resolution passed in 2007.Footnote 7 On 27 February 2011, all fifteen Council members agreed to refer the situation of Libyan Arab Jamahiriya since 15 February 2011 to the ICC.Footnote 8
In the initial stages of its engagement, the Security Council was not fully aware of the delicate nature of the question related to the jurisdiction of international criminal tribunals. Restricting the competences of the ICTY to ‘serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991’, the Council did not impose an end date; nor did it regulate the nationality of individuals to be brought before this tribunal, invoking instead the general concept of ‘natural persons’.Footnote 9 Since then, it has shown a growing awareness of the importance of regulating the temporal and personal scope of jurisdiction in a more exact manner. A principal idea runs through all the subsequent international criminal justice initiatives: to restrict the jurisdiction of each tribunal so as to ensure that it will only investigate and prosecute acts of local actors (mostly political and military leaders) in conflict or post-conflict situations involving mass atrocities, while excluding the activities of actors engaged or present in these situations whose missions are supported by permanent members of the Security Council. The idea was shaped during the drafting of the ICTR Statute. The tight temporal jurisdiction ensured that no conduct of these actors would fall within the competence of this tribunal.Footnote 10 The same idea gained a firmer foothold in the wake of the ICTY Prosecutor's decision not to open a criminal investigation into a series of allegations in connection with the NATO bombings of Serbia in 1999.Footnote 11 Although no criminal investigation was ever conducted, the uncomfortable episode strengthened the interest of NATO members with permanent seats in the Council in regulating more stringently the range of cases that could come before international criminal tribunals.
The competence of the Special Court for Sierra Leone (SCSL), established in 2000, is restricted to serious violations of humanitarian law perpetrated on Sierra Leonean territory since 30 November 1996 by ‘leaders who, in committing [serious violations of international humanitarian law] have threatened the establishment of and implementation of the peace process in Sierra Leone’.Footnote 12 The Security Council did not limit the competences of the court to the prosecution of national leaders, whether on the side of the government or the rebel forces. Nor did it restrict the court's personal jurisdiction to nationals of Sierra Leone (and the court did exercise its jurisdiction over Charles Taylor, who is Liberian). But the Council recommended that the court should centre its efforts on the prosecution of such violations committed within the territory of Sierra Leone, and that its personal jurisdiction should be limited to persons ‘who bear the greatest responsibility’ for these crimes, including those leaders who, in committing such crimes, have threatened the peace process in that country.Footnote 13 The SCSL Statute excluded explicitly from the jurisdictional purview of the court all peacekeepers and other foreign personnel who were present on the territory of Sierra Leone on the basis of agreements between the UN or regional organizations and its government. The court, which was closed in 2013, could exercise jurisdiction over those cases only if the sending states were unwilling or unable genuinely to investigate or prosecute transgressions of their nationals employed as peacekeepers or related personnel, and if the Security Council had authorized such an exercise.Footnote 14
The pattern of restricting the reach of international criminal tribunals is manifested in the STL Statute. The competence of the Special Tribunal for Lebanon has been narrowed down to the investigation and prosecution of persons responsible for one particular terrorist act: ‘the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons’.Footnote 15 This detailed judicial mandate, materially and temporally speaking, was criticized by the UN Secretary-General in the process leading up to this tribunal's establishment. Stressing that the UN strives to define a ‘temporal jurisdiction comprehensive enough to include the most serious crimes committed by those most responsible throughout the relevant period’ without overburdening the prosecutor's office and the tribunal as a whole, he pointed out that the idea of ‘singling out for prosecution the assassination of Rafiq Hariri, while disregarding a score of other connected attacks could cast a serious doubt on the objectivity and impartiality of the tribunal and lead to the perception of selective justice’.Footnote 16 The criticism led to the introduction of the clause that contemplates the possibility that the tribunal may find that other attacks perpetrated in Lebanon between 1 October 2005 and 12 December 2005, or at any later date, may be connected with the attack of 14 February, and of similar gravity. In these cases, it may exercise its jurisdiction over these attacks provided that Lebanon and the Security Council approve of it in advance.Footnote 17 Nevertheless, on the whole, the STL jurisdiction remains extremely narrow.
The ICC's institutional relationship with the Security Council differs on several counts from the other criminal justice initiatives examined so far. Having been established by treaty, the ICC is considered a milestone in the strengthening of judicial independence for international criminal tribunals.Footnote 18 Even so, remarkable titles were conceded to the Council during the legislative process preceding the adoption of the Rome Statute. While the ICC possesses institutional independence insofar as it has been created outside the UN framework, the statute contains provisions that enable the Council to influence the scope of ICC jurisdiction in situations that in its view amount to threats to international security in accordance with Article 39 of the UN Charter. For a start, Article 16 acknowledges the Council's power to request the ICC not to initiate or proceed with an investigation or proceeding during twelve months, and the Council is permitted to renew such requests under the same conditions.Footnote 19 This competence has been exercised twice. The first time was on 1 July 2002 when it requested the court not to initiate any investigations or prosecutions involving alleged crimes of peacekeepers of states not party to the Rome Statute, also affirming its intention to renew the same request each 1 July.Footnote 20 What renders remarkable this request, which was reiterated the following year,Footnote 21 is that it was made before the court had actually been constituted, and without any affirmation that such investigations would constitute a threat to international security.Footnote 22 On 1 August 2003, the Council invoked its right to exclude cases from the ICC in the context of the Liberian situation, also this time to ensure that current or former officials or personnel of peacekeeping forces from contributing states not party to the Rome Statute would not be brought before it. The crimes of these persons would be brought before the courts of contributing states, which are granted an exclusive right to decide whether or not to waive their competence in each case.Footnote 23
The Council may also make referrals of situations where one or more crimes recognized in the Rome Statute appear to have been committed.Footnote 24 Even if only two permanent members of the Council have ratified the statute, the Council has used this opportunity more than once, as mentioned in the introduction above: first, in relation to the Darfur situation,Footnote 25 and, thereafter, with respect to the Libyan situation.Footnote 26 Both referrals impose limits on the ICC jurisdiction. For instance, crimes arising out of, or related to, operations in Sudan, which have been established or authorized by the Council or the African Union, are to be dealt with by the courts of contributing states, unless these states expressly waive their jurisdiction in these cases.Footnote 27 The Council also ensures that the crimes of nationals of states not party to the statute who participate in peacekeeping and other operations in Libya will not be prosecuted.Footnote 28
In conclusion, the Security Council has established a pattern of imposing limits on the jurisdiction of international criminal tribunals, with the effect of excluding politically delicate cases. Above all, this excludes grave crimes committed by actors involved in conflict and post-conflict situations whose missions are backed by permanent members of the Security Council. Through the adoption of Chapter VII resolutions, this political organ not only facilitates international prosecutions, but also decides which crimes will not come before international criminal tribunals, even within one and the same situation. Indeed, as long as the Council refrains from engaging in a given situation, the ICC acts with more independence. Nevertheless, whenever it does decide to invoke its Chapter VII powers, it is capable of determining the focus and direction of international criminal justice, not merely with respect to its ad hoc initiatives, but also in relation to the ICC. It is well known that this phenomenon depends on the persistent US opposition to the idea of permitting international criminal tribunals to investigate and prosecute acts of US soldiers or peacekeepers and military forces of US allies, since such trials may be politically charged.Footnote 29 Indeed, its opposition extends to prosecutions of any of its nationals abroad. The exercise of US power may go a long way towards explaining why Belgium repealed its progressive law concerning the prosecution of crimes in August 2003Footnote 30 and why Spain did the same in 2014.Footnote 31 In practice, however, not only the US, but also other permanent Council members benefit from the jurisdictional limits of international criminal tribunals. Whereas the ad hoc initiatives exclude all foreign peacekeepers and related personnel, the ICC referrals exclude the nationals of all states not party to the Rome Statutes participating in operations in situations of which the Council is seized. Capable of enabling the ICC's exercise of universal jurisdiction, this political organ is careful to restrict the horizon of its judicial actions.
3. The compatibility of political control with judicial independence
Concerns about the significance of the political control exercised over international courts and tribunals have been raised in the context of the contemporary debate on the meaning and requirements of judicial independence in the international judicial context. At the time of the drafting of the Burgh House Principles on the Independence of the International Judiciary,Footnote 32 Ruth Mackenzie and Philippe Sands observed that ‘the degree of control exercised by political organs over [other] judicial bodies through financial and procedural mechanisms may be significant’.Footnote 33 However, instead of setting forth a forceful critique of this control, a broad agreement among international judges and legal scholars has emerged about the necessity and desirability of narrowing down the definition of judicial independence, so as to make it compatible with such control.
Prior to elaborating further on the origins and features of this agreement, including its problems, it is important to highlight that the concerns about judicial independence discussed in this article are limited to the so-called institutional and not the personal aspect of judicial independence. Whereas the latter refers to the independence of international judges as such, the former brings into focus the independence of the institutional setting in which judging takes place vis-à-vis political organs.Footnote 34 The personal aspect is acknowledged in all the statutes of international criminal tribunals.Footnote 35 For example, these statutes establish that international judges ‘shall be independent in the performance of their functions’.Footnote 36 Pursuant to the STL and the SCSL statutes, this duty also applies to the judges serving on these tribunals.Footnote 37 By contrast, the requirements derived from the institutional aspect of judicial independence have not been spelled out in codified international criminal law. Except for the general affirmation of the institutional independence of the ICC in the preamble of the Rome Statute, the codified definition of judicial independence in international criminal law does not contemplate, at least not in any explicit manner, this aspect.
3.1. Views from the bench
The origins of the broad agreement among legal scholars and judges about the need to accept political control over international criminal tribunals can be traced to the reasoning and conclusions reached by the ICTY Appeals Chamber in the Tadić decision.Footnote 38 In the initial phase of the proceedings in this case, the defendant challenged the ICTY's jurisdiction on the basis that this tribunal had not been ‘established by law’, which, according to the UN Human Rights Committee and the European Court of Human Rights, is a basic condition for judicial independence.Footnote 39 To illustrate this point further, as stated by the former European Commission of Human Rights, it is the object and purpose of the requirement established in Article 6(1) of the European Convention of Human Rights that courts shall be ‘established by law’ that the judicial organization in a democratic society does not depend on the executive branch, which is a basic element of judicial independence.Footnote 40 As the ICTY itself notes, the requirement in question is ‘intended to ensure that the administration of justice is not a matter of executive discretion, but is regulated by laws made by the legislature’.Footnote 41 Against this background, the ICTY's interpretation of ‘established by law’ in the Tadić decision is of interest. In this case, the defendant argued that the requirement is a ‘general principle of law recognized by civilised nations’ in the sense of Article 38.1(c) of the ICJ Statute. As such, it is applicable to and must be respected in international judicial context.Footnote 42 Faced with this challenge, the ICTY Appeals Chamber made a fundamental choice that has been critical to the development and further consolidation of the legal opinion, now dominant, about the necessity of accepting considerable political control over international criminal tribunals. Not contesting the status of ‘established by law’ as a general principle of law, the Appeals Chamber held that its application is limited to the domestic realm.Footnote 43 In support of this conclusion, it underscored the absence of an international legislature in the international realm, at least in the technical sense, endowed with competences to adopt laws. It also stressed the broad powers conferred to the Security Council under Chapter VII of the UN Charter, enabling it to adopt decisions with obligatory force in reaction to international security threats. Even if not a parliament, the Chamber continued, the Council has power to make binding decisions, including on the creation of international criminal tribunals.Footnote 44 In a similar vein, in the Kanyabashi case, in which the defendant alleged that the ICTR was not independent and impartial, the ICTR Trial Chamber recognized that the Security Council may well create a truly independent and judicial body ‘using its wide discretion under Chapter VII’.Footnote 45
Besides endorsing the lawfulness of their establishment, the two ad hoc tribunals also tackled the question concerning their actual or real independence vis-à-vis the Security Council. In the Tadić case, the ICTY Appeals Chamber also underscored the ICTY's independence from the Security Council by affirming its incidental or inherent jurisdiction to decide on the propriety of its own jurisdiction (compétence de la compétence), and to review the legality of its own creation.Footnote 46 In this way, it rejected the assumption that its jurisdiction would be ‘absolutely limited to what the Security Council “intended” to entrust it with’, and that the tribunal would be totally in the power and at the mercy of this political organ.Footnote 47 Furthermore, in response to the allegations made in the Kanyabashi case that the ICTR was a mere ‘appendage of an international organ of policing and coercion, devoid of independence’, the ICTR Trial Chamber emphasized the tribunal's degree of integrity and legal independence, pointing especially to the fact that it ‘has its own Statute, its own sphere of jurisdiction and its own rules of operation’.Footnote 48 In the Kallon et al. case, the SCSL Appeals Chamber arrived at a similar conclusion. Though the issue related to its competence to review the legality of the Court's creation cropped up in a different context, the SCSL relied on the relevant passages in the Tadić decision when affirming its inherent or incidental jurisdiction to decide on this matter.Footnote 49 In this light, the SCSL determined that the question ‘is not whether the Court has such discretionary power’, which it upheld, ‘but whether it is exercisable in this case’ in accordance with its Rules of Procedure and Evidence.Footnote 50
Since the time of the SCSL Decision, the claim about the inherent or incidental jurisdiction of international criminal tribunals to review the legality of the Security Council's resolutions has become disputed as a result of the delineation of jurisdictional issues which may be raised in preliminary motions before international criminal tribunals.Footnote 51 Notably, in the Ayyash et al. case,Footnote 52 the STL Appeals Chamber stated that ‘[t]he Statute of the Tribunal – enacted by the Security Council – provides no explicit source of power authorizing the Tribunal to judicially review the actions of the Security Council and make either a binding order or a declaration carrying legal weight in respect of its actions’.Footnote 53 In the same case, the STL went on to criticize the Tadić decision, pointing out that it was not unanimous and overturned a contrary decision of the ICTY Trial Chamber.Footnote 54 It thereby revealed the ‘starkly different legal views on the issues even then’.Footnote 55 In addition, it pointed out that in the Kanyabashi decision the ICTR did not affirm its power to review the legality of Security Council resolutions; rather, in its view, the question of ‘whether or not the Security Council was justified in taking actions under Chapter VII when it did, is a matter to be determined by the Security Council’.Footnote 56
3.2. Views from the academy
The fact that the space of international judging is limited finds considerable support among legal scholars. More important than discussing the independence of international criminal tribunals from the Security Council is to ensure these tribunals’ effectiveness. The debate on independence versus effectiveness has its origin in a study of Eric Posner and John Yoo who questioned the insistence on judicial independence in the international judicial context, as it would render international tribunals ineffective and obsolete. The proper functioning of these tribunals depends on whether states with stakes in them are inclined to act in their support. From this perspective, institutional dependence, rather than its opposite, must be seen as an indispensable condition, as it will allow principal stakeholders to assume ownership of international justice and increase the likelihood of counting on them for political and financial support.Footnote 57
Lawrence Helfer and Anne-Marie Slaughter criticized these conclusions, not for their focus on effectiveness, but for relying erroneously on an ‘ideal-type’ definition of judicial independence.Footnote 58 Instead of abandoning the commitment to independence altogether, the meaning and scope of judicial independence must be revised so as to make it compatible with politically imposed constraints on international judicial decision-making. In particular, attention must be paid to the interests of most powerful states in restricting the scope of judicial activities through the imposition of formal, structural, or political constraints in the process preceding the adoption of international justice initiatives and/or in their enforcement.Footnote 59 For Helfer and Slaughter, such constraints are not incompatible with independence, but should be understood as ‘more fine-grained calibrations of judicial structure’ and ‘design choices’ that allow powerful states to fine-tune their influence in judicial affairs.Footnote 60
In the light of these and other similar accounts, the institutional setting in which international judging takes place is by now characterized as ‘constrained independence’, ‘bounded discretion’,Footnote 61 or as connoting a ‘strategic space’.Footnote 62 This understanding has been developed further. In his research on the effectiveness of international courts, Yuval Shany articulates a goal-based approach to independence, which reinforces the trend of limiting the significance of judicial independence.Footnote 63 One of the findings is that effectiveness should not be conceptualized in general and abstract terms, but is better related to the multitude of specific goals assigned to different tribunals. How much judicial independence should be attributed to these tribunals depends on their capacity to effectively pursue the specific goals that have been assigned to them. For Shany, ‘the relationship between the independence of inter-national courts – complex institutions with myriad goals – and their effectiveness is not linear in nature’.Footnote 64 Thus, the requirements of independence for one tribunal will differ from those of others and will not in any case be the same for all of them. In this sense, the goal-based approach tends to ‘relativize’ the requirements of judicial independence for the sake of guaranteeing effectiveness.
The goal-based approach is unique in its genre of theories about international judicial independence, in that it provides some room for entertaining the view that there might nevertheless be something regrettable about the idea of a narrow definition of judicial independence for the purpose of rendering it compatible with the interests of powerful states. As Shany observes, the ‘practice of the ICTY and the ICTR suggest that striking the balance between independence (and impartiality) and responsiveness (or accountability) to the needs of the principal stakeholders may be quite difficult in certain cases, where the operation of international courts threaten to clash with the political circumstances that allow these courts’ existence’,Footnote 65 rendering it necessary to accept trade-offs with respect to the requirements of judicial independence. This conclusion reflects a somewhat apologetic stance on why political control must be accepted as consistent with judicial independence of international courts and tribunals. As such, it indicates that such control is nevertheless problematic as a matter of principle.
4. A human rights appraisal of political control
The approaches to judicial independence that have been designed to accommodate the political circumstances in which international courts and tribunals operate should be contrasted with the understanding of this principle as established in international human rights law and jurisprudence.Footnote 66 According to Article 14(1) of the International Covenant on Civil and Political Rights (1966): ‘In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’.Footnote 67 Article 6(1) of the European Convention of Human Rights (1950) and Article 8(1) of the American Convention on Human Rights (1969) entail a similar formulation of this right. But what is needed for a tribunal to be regarded as ‘independent’?
The UN Human Rights Committee (UNHRC) has interpreted judicial independence as a notion linked to an understanding of the term ‘tribunal’ as ‘a body, [which] regardless of its denomination, … is established by law, is independent of the executive and legislative branches of government, or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature’.Footnote 68 From this viewpoint, ‘independence’ is not simply a desirable feature of any given tribunal, but an essential condition that any organ must fulfil to be at all worthy of that name. In line with the UNHRC definition, a commitment to judicial independence generates two institutional requirements, not only that a tribunal is formally independent from executive power (‘established by law’), but also that it is independent in real and actual terms (‘independent of the executive and legislative branches of government’).Footnote 69 While the former stipulates that only legislative and not executive powers can establish tribunals, the latter requirement concerns political control, and is meant to counter situations ‘where the functions and competences of the judiciary and the executive are not clearly distinguishable’; it also counters situations where ‘the latter is able to control or direct the former’.Footnote 70
Political control is not to be equated with dependencies in general. All courts depend on executive power to execute arrest warrants, to enforce judicial decisions, to provide security for court officials, and to allocate resources to the judiciary. These types of dependencies become problematic when political organs abuse them for the purposes of directing or blocking the investigation or prosecution of certain cases and obtaining desirable verdicts. Such control can be direct which is the case when the political organ interferes with and directs the judicial process in specific cases. The same control can also be indirect when political organs use their legislative powers to regulate criminal jurisdiction in an unlawful or inappropriate manner that is contrary to the rights to equality before the law and the courts. While more subtle and indirect, the latter form of control is most significant. As John Ferejohn notes,
the more genuine threats to judicial independence – if we interpret it as providing a broad guarantee that people can have their disputes settled in front of independent judges – are not really the sporadic attacks on individual judges, but instead are found in attempts to diminish or regulate the powers of the judiciary as a whole.Footnote 71
Such attempts, which are often hidden and include ‘jurisdiction-stripping’, are usually non-confrontational, as these kinds of constraints on judicial power are negotiated in the legislative process. However, given the power of political actors to legislate on matters of jurisdiction, it is often difficult to maintain a wide jurisdiction of tribunals. This difficulty stems from the fact that living up to a commitment to judicial independence does not only depend on the conduct of individual judges and prosecutors, but also on the willingness of political actors who participate in the law-making process to refrain from invoking their legally recognized powers in an effort to exclude delicate cases from reaching the courts.Footnote 72
Political control raises concerns about judicial independence, as it hampers the capacity of courts to act in accordance with respect for human rights and the rule of law. Independence is not to be sought for its own sake; rather, its value is derived from the fact that it is an essential instrument for the realization of fundamental human rights and the rule of law. The rights to a fair trial as well as to equality before the law and the courts can only be guaranteed in a system of courts whose powers are not circumscribed by political organs in a way that is contrary to the commitment to equality and non-discrimination in the enjoyment of these rights. The courts will only be able to protect these rights provided that they are free from control of political organs, an essential condition for a sound administration of justice.Footnote 73 The established connection between the rule of law and judicial independence reinforces this claim. For example, the UN-promoted definition of the rule of law requires that ‘all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection before the law’.Footnote 74
The understanding of judicial independence as an essential condition for guaranteeing human rights and the rule of law is firmly established in several relevant international policy instruments. According to the UNHRC, the principle is meant to ensure the proper administration of justice, i.e. the judicial protection of the right to a fair and public hearing, as well as the right to equality before the law and the courts including equal access to justice and the actual independence of the judiciary from political power.Footnote 75 The Beijing Statement of Principles of the Independence of the Judiciary holds that the ‘maintenance of the independence of the judiciary is essential to the attainment of its objectives and the proper performance of its functions in a free society observing the rule of law’.Footnote 76 Furthermore, the Bangalore Principles on Judicial Conduct holds that an independent judiciary is ‘essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law’ and constitutes a ‘prerequisite to the rule of law and a fundamental guarantee of a fair trial’.Footnote 77 In accordance with the UN Declaration on the Rule of Law at the National and International Levels, adopted in 2012, ‘the independence of the judicial system, together with its impartiality and integrity, is an essential prerequisite for upholding the rule of law and ensuring that there is no discrimination in the administration of justice’.Footnote 78
Against this background, what matters is whether a given politically imposed restriction of judicial competences is consistent with human rights and the rule of law in the sense of not intruding on the ability of the courts to select and conduct cases in a non-discriminatory manner. The commitment to equality and non-discrimination requires that persons in like circumstances be treated equally in law and practice. Not every distinction or difference in treatment will constitute discrimination. A violation of the principle arises if equal cases are treated in a different manner or a distinction in treatment lacks an objective and reasonable justification. As the Inter-American Court of Human Rights has put it, ‘no discrimination exists if the difference in treatment has a legitimate purpose and it does not lead to situations which are contrary to justice, to reason or to the nature of things’.Footnote 79 The non-discrimination rule is also infringed if there is no proportionality between the effects of inequalities before the courts and the aims of the constraint imposed.Footnote 80 The exclusion of politically delicate cases from the reach of the courts in the sense of blocking their investigation and prosecution generates inequalities before the law and the courts among perpetrators and crime victims. The unequal treatment means that some victims are deprived of their right to access justice and to obtain effective remedies. For this unequal treatment to be justified the restriction must have a legitimate aim and there must be a reasonable relationship of proportionality between the aim sought to be realized and the means employed.
5. Reclaiming judicial independence in the international context
The narrow definition of the principle of judicial independence designed for the international judicial context is difficult to reconcile with the commitment to human rights and the rule of law. A basic problem is that it overlooks how political control of judicial competences affects the ability of courts to perform their functions with due respect for human rights and the rule of law. The definition thus marginalizes the claim that the exercise of political control over international criminal justice may be contrary to judicial independence and, ultimately, to respect for human rights and the rule of law. It thereby avoids the complicated task of assessing whether the politically imposed restrictions are consistent with the principle of non-discrimination, which requires a consideration of whether such restrictions pursue a legitimate aim and are proportionate in the light of their negative effects.
However, human rights scholars and professionals have also refrained from advancing a forceful critique of the limits to international judicial independence. Insofar as criticisms have been set forth of the practice of excluding peacekeepers from the reach of international criminal justice, they have not been directly related to judicial independence.Footnote 81 Several factors have influenced this state of affairs. For a start, the competences of international human rights organs are restricted to the regulation and supervision of state compliance with human rights obligations as recognized in different treaties. Insofar as attention is given to international criminal tribunals in UN reports related to judicial independence, their consideration of these tribunals is reduced to the presentation of summaries of jurisprudential developments.Footnote 82 Second, the introduction of international judges into conflict and post-conflict situations in which the Security Council is engaged furthers one of the central goals of today's human rights movement: to end impunity through the creation of accountability mechanisms. As Ralph Zacklin observes,
a new culture of human rights and responsibility, in which there can be no impunity for such crimes, has gradually taken root and the link between an established system of individual accountability and the maintenance of international peace and security has been confirmed.Footnote 83
The duty to prosecute serious human rights violations is now considered as a fundamental aspect of human rights protection.Footnote 84 For this reason, the contemporary institutional advancements in the area of international criminal justice seem worthy of defending in spite of their imperfections. A third factor is the perceived authority of the international judicial decisions concerning the meaning and scope of judicial independence. Especially important is the emphasis placed on the institutional differences between the international and domestic domains, and how these differences impede the automatic transposition of the requirements of judicial independence to the international judicial context.Footnote 85 The absence of an international democratic legislature is striking but so is also the prevalence of an international enforcement system whose effectiveness relies on the willingness of states to implement international judicial decisions. The transposition objection reinforces the contention that it is necessary to start anew when articulating the requirements of judicial independence for international courts and tribunals.
Nonetheless, while these factors may well explain the modest degree of attention that has been paid to international judicial independence, none of them amount to a compelling reason for limiting the human rights approach to judicial independence to the domestic realm. To illustrate, the UN initiatives to develop the concept of the rule of law for the purpose of improving conduct not only of its members but also of UN organs indicate that the focus of human rights policy is changing and will need to extend to assessments of the functioning of the international administration of justice.Footnote 86 In this regard, the UN recognizes the contributions of the Security Council to the rule of law, stressing that ‘delivering justice and security in respect of the rule of law mitigates conflict, helps reduce the risk of relapse into further conflict, and creates the conditions conducive to sustainable development’.Footnote 87 Furthermore, the contention that the work of international criminal tribunals should be cherished as they further the goal of fighting against impunity is not incompatible with the claim about the need to improve the way in which these tribunals operate and to counter discrimination in the area of international criminal justice.Footnote 88
Besides, the transposition objection may also be challenged.Footnote 89 As Michael Bohlander notes, it is by no means evident that this objection can be legitimately invoked with respect to all the requirements of judicial independence. Even if some of them may not be immediately transposable, several of them are. For example, the proclamation made in Article 1.1 of the Mt. Scopus Approved Revised International Standards of Judicial Independence, approved on 19 March 2008, that an ‘independent and impartial judiciary is an institution of the highest value in every society and an essential pillar of liberty and the rule of law’ seems directly transposable. As for Article 2.3 of the same standards, which stipulates that ‘the judiciary as a whole shall enjoy collective independence and autonomy vis-à-vis the Executive’, it seems sufficient that the term ‘Executive’ is replaced by ‘national governments and executive bodies of international organizations’ for the standard to make sense in the international judicial context.Footnote 90
Against this background, the arguments that have fostered a human rights policy of avoiding the question of judicial independence in the context of international criminal justice are contentious and some of them subject to continued disagreement. It thus seems too hasty to accept the rationale behind the claim about the need to narrow down the definition of judicial independence before it can be applied to the international judiciary. Any compromise of the human rights-based requirements of judicial independence, especially the decision to detach the meaning of the principle from the basic values it is meant to serve, inevitably undermines the legal basis for countering the exercise of political control over the competences of international criminal tribunals. Insofar as the current institutional arrangement generates unjustified inequalities before the law and the courts among perpetrators and victims of grave crime, the political control exerted by the Security Council is a problem that needs to be addressed. As this article suggests, the injustices created by the current arrangement demonstrate the importance of transposing the human rights approach to judicial independence to the realm of international criminal justice, and of reflecting on which kinds of adjustments of this approach are acceptable without defeating the very purpose for which judicial independence is upheld in international human rights law.
5.1. The legal constraints on the power of the Security Council
The Security Council has a legally recognized power to determine what constitutes a threat to international security and respond to such threats through the adoption of coercive measures, including the use of armed force. By now, it is firmly established that Article 41 of the UN Charter constitutes the legal basis for its decisions to promote new criminal justice initiatives and to make ICC referrals in a lead to counter these threats. Nevertheless, it seems equally uncontroversial that the broad mandate which has been conferred on this political organ does not extend to a power to freely determine how international criminal tribunals are to function. In this regard, Article 24 imposes a duty of the Council to ‘act in accordance with the Principles and Purposes of the UN Charter’, i.e. in consonance with the principles of justice, the promotion of human rights, and respect for equality and non-discrimination among peoples and individuals.Footnote 91 In other words, the Security Council is legally bound to respect these principles in the process preceding decisions on international criminal justice.
The relevance of the political process preceding the creation of new international criminal tribunals was recognized in the Tadić case. As stated in this decision, the requirement ‘established by law’ is guaranteed if the process preceding the creation of international criminal tribunals is ‘rooted in the rule of law and offer[s] all guarantees embodied in the relevant international instruments’.Footnote 92 More specifically, such tribunals ‘must be established in accordance with proper international standards; it must provide all the guarantees of fairness, justice, and even-handedness, in full conformity with internationally recognized human rights instruments’.Footnote 93 These passages reinforce the claim about the existence of legal constraints on the Council's exercise of political power over international criminal justice, including respect for human rights and the rule of law. The judicial and scholarly recognitions that the Security Council has both executive and legislative authority renders the shift of focus onto the legal constraints in the exercise of these functions all the more critical.Footnote 94
A human rights approach to judicial independence is not concerned with the question of whether a given criminal justice initiative pursued by the Security Council has a legitimate aim. It seems reasonable to assume that these kinds of initiatives are legitimate insofar as they lead to the establishment or activation of international accountability mechanisms to investigate or prosecute the gravest crimes of concern to international society as a whole. Rather, what is relevant is whether a given initiative, including decisions regarding its design, is consistent with the principles and purposes of the UN Charter, including the promotion of human rights as well as equality and non-discrimination. Specifically, a politically imposed restriction must serve a legitimate aim and the effects of the restriction must be proportionate to this aim. The need to ensure a tribunal's effectiveness is important but fails to constitute an objective and reasonable justification for resulting inequalities among perpetrators and victims of grave crimes. Of course, in principle a court will be more effective in performing its judicial functions if the universe of cases that may come before it is limited ex ante. However, an exclusive concern with effectiveness overlooks the question of the legality of jurisdictional limits in the light of the principles of equality and non-discrimination. Given the legal constraints imposed on the Security Council under the UN Charter, the reasons for limiting criminal jurisdiction are nevertheless relevant. What matters is whether the considerations underlying a given restriction constitute an objective and reasonable justification.
Now, there are possible justifications for excluding foreign presence in conflict and post-conflict situations from the reach of international criminal justice. The first thing to note is that this Council practice stems from a tradition of bilateral and multilateral agreements on immunity from liability and prosecution of forces, operations, and missions while stationed abroad.Footnote 95 These agreements endorse the notion of functional immunity, which means that the privileges granted to foreign actors in situations in which the Security Council is involved are based on a conviction that their protection from the risk of politically charged or arbitrary trials and punishments when on mission is essential to the effective realization of their tasks. While acknowledging that the exclusion of foreign actors might be supported by a practice of granting them immunity from jurisdiction, it must also be recalled that what is distinct and special about international criminal tribunals as opposed to domestic courts is that claims of immunity are invalid, even when invoked by sitting heads of state and government.Footnote 96 Also the more specific argument about the necessity of protecting foreign presence from politically charged trials seems weak considering that one of the more powerful defences of internationally sponsored criminal justice initiatives is that international criminal proceedings uphold fair trial guarantees. A somewhat different consideration is the existence of alternative judicial forums. With respect to grave crime perpetrated by forces, operations, and peace operations stationed abroad, it is to be expected that they will be investigated and prosecuted by the sending states. However, while this rule counters impunity, there is no guarantee that the courts of the sending states will investigate and prosecute such crime. Furthermore, geographical distance between the court and the crime scene will make it more difficult to collect the necessary evidence and to hear witnesses. In practice, this arrangement often means that the victims of such crime will obtain no reparation. For these reasons, victims of grave crime perpetrated by foreign actors are discriminated against and deprived of their right to effective remedies.Footnote 97 Indeed, NGO reports attest to the fact that victims of grave crime committed in the context of interventions are ‘forgotten’ in this sense.Footnote 98 Limiting the scope of international criminal jurisdictions for reasons related to effectiveness upheld as a legitimate aim does not amount to a reasonable and objective justification, especially when considering the disproportionality between the means employed, i.e. depriving the victims of grave crime of access to remedies, and the aim sought to be realized.
5.2. Tackling the de facto prevalence of political control
One possible objection to the human rights approach is that, no matter how unfair or unjust it may seem that the permanent members of the Security Council can use their privileged position and protect their national interests in decisions on whether or not to bring the perpetrators of grave crime before international criminal justice, changing the current state of affairs is difficult, if not impossible. The recent failure to pass a resolution referring the Syrian situation to the ICC may reveal how Cold War politics continue to impact the Security Council's actions in the area of international criminal justice, and thus to ensure accountability for grave crimes.Footnote 99 More acutely, it seems to marginalize the practical importance of international criminal tribunals to be on good terms with principal stakeholders. Criminal tribunals are costly and in need of counting on financing from powerful states. Furthermore, such tribunals are expected to function in situations before the international security problem has been resolved, or ‘are established in the midst of the conflict in which the alleged crimes occurred’.Footnote 100 The accomplishment of the latter task presupposes the possibility of relying on security provided by executive organs. To this should be added that, unlike the tribunals at Nuremberg and Tokyo, which mainly relied on documentary evidence, the success of contemporary proceedings depends on whether exhumations can be carried out and testimonial evidence collected in unstable environments. In this spirit, Carla Del Ponte notes that the continuation of the investigations into the NATO bombings in 1999 would have rendered her office incapable of continuing to investigate and prosecute the crimes committed by the local forces during the wars of the 1990s, as the forensic teams of the tribunal could not exhume mass graves in the absence of NATO assistance.Footnote 101
The approach advanced in this study seems incapable of responding to the difficult questions of policy and law that crops up here and now as a result of the fact that powerful states make their willingness to co-operate conditional on their capacity to control the scope of criminal jurisdictions. From a human rights perspective, politically imposed restrictions on judicial action might still represent a tolerable settlement because of the critical functions international criminal tribunals actually perform by relieving grave injustices, even if not all. The distinction between ideal and non-ideal theory provides important insights on this matter as it allows us to consider the difficult question of how to assess institutional settlements that do not meet the ideal standards of human rights and the rule of law, including judicial independence. From this standpoint, the political control in focus, even if compromising equality and non-discrimination among victims of grave crime, may still represent the best to hope for in the circumstances. In this sense, the basic structure of the present international institutional arrangement is, to use John Rawls’ expression, ‘as just as it is reasonable to expect in the circumstances’, which implies that everyone has a duty to do his or her part in this arrangement in spite of its imperfections.Footnote 102
Nonetheless, the acceptance of the political control exerted by the Council remains a ‘transition case’.Footnote 103 Accepting the present situation in the sense of tolerating some politically driven and unjustified constraints on judicial action is a second-best option that belongs to the domain of non-ideal theory. The human rights approach advocated in this article recognizes an equally important role for the ideal-type of judicial independence in less than ideal circumstances. The maintenance of ideal theory has several essential functions. For one thing, it upholds the connection between the principle under consideration and the basic values it is meant to serve. In addition, it provides a basis for the argument about the necessity of seeking further improvement and de-legitimizing the extent to which the interests of powerful states are currently allowed to impose legal and procedural constraints on international judicial action. The absence of effective international judicial mandate to review the legality of the Security Council's decisions that are inconsistent with UN principles and objectives is not a reason for abandoning these ideals. While a majority of international judges refuse to accept the tenets of the political question doctrine, their competences to exercise judicial review are limited and do not extend to the power to overrule such decisions.Footnote 104 Other non-judicial review devices should be considered, such as the consultative role of the UN Secretary-General in the Security Council decision-making processes leading to the adoption of criminal justice initiatives, as well as more informal ones, including criticisms by NGOs and by legal scholars.Footnote 105
6. Conclusion
The accounts of judicial independence that accept and accommodate political control do so on the basis of a belief about the difficulties of changing the interests of powerful states with permanent seats in the Security Council in determining and restricting the reach of international criminal justice. From this standpoint, what is far from perfect can and should be defended on normative grounds. In practice, it comes close to defending and legitimizing the status quo. The human rights-based account of judicial independence offers a counter-position in that it insists on the integrity of the principle of judicial independence and defends the connection with the basic values that this principle is thought to safeguard. These basic values are not restricted to the right to a fair trial but extend to the right to equality before the law and the courts, including equality and non-discrimination among perpetrators and crime victims. This approach requires that the political decisions that diminish the scope of jurisdiction must be justified in the sense of meeting a legitimate aim and being proportionate.
The human rights approach has several advantages compared to competing theories of judicial independence. To start with, it counters the risk of double standards in international legal reasoning on judicial independence. Furthermore, even if it is true that some states are more powerful than others, this fact alone does not render their interests legitimate. The approach presented provides a coherent and meaningful standard for assessing the degree of independence of all tribunals, including international criminal tribunals, as well as a basis for criticizing situations in which the requirements derived from this principle are not met. It also encourages political organs to articulate and communicate the reasons for their decisions, in this case, the exclusion of foreign actors, in an effort to meet the commitment to equality and non-discrimination before the law and the courts. Even if the political acts in focus cannot be overruled, the approach defended in this study provides a cogent basis for addressing and responding to the growing criticism of selective international criminal justice as a problem of judicial independence, with a view towards improvement, which is so urgent today.
