Here lies the explanation why, in the present state of world society, international criminal law in any true sense does not exist … There are … some powers who are not only in fact immune to the application of collective enforcement measures but who, in law, too, are in a privileged position … If, and when, the swords of war are taken from their present guardians, then, and only then, will the international community be strong enough to wield the sword of universal criminal justice.Footnote 1
We, high-level representatives of States Parties … Guided by a renewed spirit of cooperation and solidarity, with a firm commitment to fight impunity for the most serious crimes of international concern and to guarantee lasting respect for the enforcement of international criminal justice … Reaffirm our commitment to the Rome Statute of the International Criminal Court and its full implementation, as well as to its universality and integrity.Footnote 2
I. INTRODUCTION
Writing 62 years ago, Georg Schwarzenberger pronounced that ‘in any true sense’ international criminal law (ICL) did not yet exist.Footnote 3 His statement is, at least initially, extremely surprising given its context, occurring as it did just four years after the creation of the International Military Tribunal at Tokyo and five years after that at Nuremberg, both of which are seen as milestones in the creation of ICL. This was no oversight on Schwarzenberger's part. The Nuremberg and Tokyo tribunals, then and now, faced accusations of victors' justice. In the dissenting words of Mr Justice Pal, ‘We may not altogether ignore the possibility that perhaps the responsibility did not lie only with the defeated leaders.’Footnote 4 Against that background, and the establishment of the United Nations framework, Schwarzenberger lamented:
Optimists may hold that the United Nations represents the transition from international anarchy to world order. Yet all that has happened so far is that the number of actually sovereign States has dwindled to two or possibly five world powers. The veto is the visible expression of this new hierarchy in world affairs.
In the absence, therefore, of a world authority which, in case of need, could confidently apply justice to such world powers as the United States and the U.S.S.R., it appears premature to speak of international criminal law.Footnote 5
The purpose of this article is therefore to assess whether this apparent ‘mismatch between [international criminal] law's universalist pretensions and its partialities and discriminations’Footnote 6 still pervades, or defines, ICL today. In other words, can we now expect ICL to wield the sword of universal criminal justice against both weak and powerful States alike? Or is it unrealistic to have had that expectation in the first place? With the Review Conference of the International Criminal Court (ICC) in Kampala, Uganda, having recently drawn to a close, the present time would seem as good an opportunity as any to reconsider Schwarzenberger's assessment of ICL.
Part II asks a preliminary yet fundamental question, one sometimes overlooked or taken for granted by the academic literature: what is ICL? The answer offered is, of course, neither definitive (Schwarzenberger himself put forward at least six different meanings) nor exhaustive, as ICL continues to mature and evolve. It is, however, essential at least to muster an attempt to consider ICL's parameters, as well as its trends and limitations, before selecting the models used to determine that law's success (or failure) in implementing the universal application of international criminal justice.
Two models are selected in this article to determine that success or failure. These are, first and foremost, the ICC, and second, the exercise of universal jurisdiction. Both have been chosen because they continue to possess, in my view, perhaps the greatest potential for bringing the representatives of States, small and large, weak and strong, to account for crimes of international concern.
Part III considers the first model, seen by many as the very embodiment of ICL: the International Criminal Court, examining and appraising the ICC's purpose, membership and current caseload. The crime of aggression is of particular interest, having been debated and defined at the Review Conference in Uganda. A permanent institution with a growing jurisdiction and membership, the ICC possesses a staying power, independence and capability that other ad hoc and hybrid tribunals lack. It is, and is likely to remain, the only institutional tool by which the world powers may choose to subject themselves to the ICL regime.
Part IV turns to the model of universal jurisdiction, described as ‘the only vital alternative to the impunity resulting from insistence on jurisdiction by the territorial or national state’.Footnote 7 The focus here is on a diplomatic incident that occurred between Israel and the British Government in late 2009 and the subsequent reform of the law of England and Wales.
The article concludes that ICL would continue to disappoint Schwarzenberger if he were alive today. While the creation and operation of the ICC has solidified a core of ICL that will continue to develop, it is not a panacea. With a critical reliance placed on a relationship of complementarity, resolving the tension between national prerogatives and the universal aspirations of ICL is largely left in the hands of States themselves. Similarly, the exercise of universal jurisdiction must be seen against the background of an international society, where States belong to different classes and possess varying levels of influence and power. This is hardly conducive to a system of neutral and universal criminal justice. Operating at the behest of States, neither the ICC nor universal jurisdiction offer a solution to this class divide. It would be unrealistic to think otherwise.
II. DESCRIBING THE ELEPHANT: WHAT IS INTERNATIONAL CRIMINAL LAW?
And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!Footnote 8
The six blind men featured in Saxe's poem each feel a different part of an elephant. This leads each of them to provide very different descriptions of the animal. Their isolated and narrow conclusions remain ignorant to the sum of its parts. One must be careful not to make the same mistake with regards to ICL.
This section represents an effort to outline the boundaries of ICL. In so doing, it is intended as a rough sketch of why, when, where and in what format ICL can be found, rather than an attempt to provide a definitive answer of what it is. After all, the contents of ICL, continually evolving, cannot be reduced to a mathematical formula. Despite this evolving picture, it useful nonetheless to attempt such a sketch in order to understand what ICL is—and what it is not—and whether it can deliver universal criminal justice.
A. What is ICL?
Writing in 1950, Schwarzenberger expressed the view that it was ‘unduly optimistic to assume that “International Criminal Law” has now been established unequivocally as a technical term’.Footnote 9 Then, and now, like the blind men in Saxe's poem, ICL remains a subject that possesses a different scope and meaning to different people: Cryer and others speak of ‘a plethora of definitions, not all of which are consistent’.Footnote 10
However, one's evaluation of the subject of ICL is inevitably tainted by personal opinion of whether and where ICL should exist, how it should develop, the crimes it should encompass and the goals that it ought to achieve. Thus, it makes all the difference whether ICL is viewed through the eyes of the general public, academic commentators, legal professionals, victims or States themselves. Unlike the men in Saxe's poem, a State's outwardly projected attitude towards ICL may be warped by factors such as self-interest, the jealous guarding of sovereignty and wilful (rather than actual) blindness, which may help to explain bouts of inactivity or non-cooperation. Is this genocide? Are these crimes against humanity? The answer to those questions depends on the perpetrators and the victims, on who is watching and who is listening, and, frankly, on who cares.Footnote 11 For States can simply refuse to see or hear enough evil. The crime of genocide, defined in the Rome Statute, is a prime example, having proven to be an ‘unreliable trigger’ in a ‘warped diplomatic parlor game’.Footnote 12 If anything, attempted legal characterization of situations such as that in Darfur has probably proven counter-productive.Footnote 13 As David Bosco suggests, the word ‘may be too powerful for its own good … It is almost paralysing.’Footnote 14 It can also be ‘a label to be stuck on your worst enemy, a perverse version of the Nobel Prize’.Footnote 15 ICL's place therefore often remains a disputed issue rather than a settled fact.
The late Antonio Cassese described ICL broadly as ‘a body of international rules designed both to proscribe certain categories of conduct … and to make those persons who engage in such conduct criminally liable’.Footnote 16 The creation of the ICC has undoubtedly made these rules and categories of conduct easier to determine. Indeed, the crimes outlined in article 5 of the Rome Statute (genocide, war crimes, crimes against humanity and aggression) act as a baseline among States, identifying the ‘most serious crimes of international concern’,Footnote 17 albeit with one crucial caveat: as agreed upon by States at the present time. It is of course well documented that Trinidad and Tobago's proposal to the United Nations General Assembly in 1989 for an international criminal court to adjudicate over the crime of drug trafficking revitalized the process in creating the ICC; yet, perhaps ironically, that offence was never included in the Rome Statute.Footnote 18 Thus, while crystallization of an offence in the statute of the ICC may cement its place as an international crime, there are many ‘missing crimes’,Footnote 19 such as sex trafficking, money laundering, corruptionFootnote 20 and the smuggling of or dealing in nuclear or hazardous materials, which are undoubtedly matters of international concern but have failed to make the grade. Piracy, frequently asserted as the first international crime, also misses out.Footnote 21 In this last case, as Cassese explains, this is probably justified: ‘the objective conduct amounting to piracy was not considered so abhorrent as to amount to an international crime … Probably it was simply because piracy by definition occurred outside any state's territorial jurisdiction that a useful repressive mechanism evolved allowing all or any state to bring pirates to justice.’Footnote 22 Kontorovich agrees, describing it as ‘nothing more than robbery at sea’ and indistinguishable from acts of privateering.Footnote 23 A recent and unexpected resurgence in piracy off the coast of Somalia has led to the establishment of a dedicated court in Kenya.Footnote 24 The court, located in Mombasa, is not of an international character, but pleas for such a body have been made by both Russia and Germany.Footnote 25
B. From a Famine to a Feast
Having swiftly moved from a famine to a feast of tribunals, ICL has suffered from a condition that David Scheffer has described as ‘tribunal fatigue’, with States ‘unenthusiastic about the prospect of reinventing the wheel—and financing it—every time an outrage against humanity merits judicial intervention’.Footnote 26 For example, while the arrest of Ratko Mladić will undoubtedly push back the closure of the International Criminal Tribunal for the Former Yugoslavia (ICTY) further still, the work of that institution and the International Criminal Tribuan for Rwanda (ICTR) is now winding down and they are focusing on their respective completion strategies.Footnote 27 In addition, the ICC adheres to the principle of complementarity; it will only act when States themselves are unable or unwilling to investigate or prosecute crimes that fall within its jurisdiction.Footnote 28 Against that background, and in the light of substantial concerns over the ability of some States to bring perpetrators to justice in an efficient or impartial manner, ICL's proposed solution has shifted away from the purely international or national approach. Both alternatives have suffered from problems of legitimacy, capacity-building and norm penetration.Footnote 29 The ICTR and ICTY in particular are ‘accused of being slow, inefficient, bottomless pits into which hundreds of millions of dollars were thrown every year, and removed from the victims and the places where the crimes had been committed’.Footnote 30
Caught in the gap between distant international tribunals such as the ICTR and ICTY—described by Danner as ‘twin petri dishes for the international criminal project’Footnote 31—and inadequate domestic justice systems, ICL has turned to a compromise to bridge the failures and limitations of both. Hybrid courts, so-called because they involve the combined effort of the international community and the national institutions of the country where the crimes were committed, have increasingly gained prominence.Footnote 32 Examples include the Special Tribunal for Lebanon (STL), Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), Regulation 64 Panels in KosovoFootnote 33 and the Special Panels for Serious Crimes in Dili, East Timor (SPSC). The aim has been ‘to marry the best of two worlds—the expertise of the international community with the legitimacy of local actors; but the risk is to intermix the worst of both—the externality of international actors with the weakness of local institutions which produced the violence in question.’Footnote 34
Given the brevity of the hybrid courts' existence, it is perhaps too soon to draw any definitive conclusion on meeting that aim. Each hybrid is unique and should be judged on an individual basis, rather than as part of a class. Nevertheless, it is fair to say that each has certainly faced its own unique problems and challenges so far. Securing and maintaining the necessary resources has been a common difficulty: the SPSC (which ceased to operate in 2005) suffered from a lack of electricity and security,Footnote 35 while the SCSL has had to compete with a truth and reconciliation commission for staff and funding.Footnote 36 The ECCC has been dogged by allegations of corruption,Footnote 37 while the STL has been denounced by HezbollahFootnote 38 and its indictments have resulted in mass ministerial resignations within the Lebanese unity government.Footnote 39 Regardless of these difficulties, their flexibility should ensure that there will continue to be a place for hybrid courts to deliver tailored justice for quite some time, filling, as they do, a considerable gap left by the ICC's jurisdictional limitations.Footnote 40
C. Trials, Trials Everywhere
ICL par excellence is undoubtedly the staging of a formal criminal trial. Judith Shklar called it ‘the supreme legalistic act’.Footnote 41 Such acts have always swung back and forth between the national and the international sphere and continue to do so. For every Thomas Lubanga Dyilo and Germain Katanga tried in the ICC, there has been an Adolf Eichmann in the District Court of Jerusalem or a Klaus Barbie in the French Court of Cassation; for every Radovan Karadzic in the ICTY, there is a John Demjanjuk in Munich,Footnote 42 an Anthony Sawoniuk in LondonFootnote 43 or an Ivan Polyukovich in Canberra.Footnote 44 In fact, the success or failure of ICL in one sphere has often acted as a catalyst or suppressant for activity in the other. At the end of the First World War, for example, the Allies organized trials for German war criminals. With Germany having resisted the release of its leaders or soldiers to an international tribunal, these trials were held in Leipzig. However, Kaiser Wilhelm II abdicated and escaped to the Netherlands. Moreover, those actually tried by the German court received lenient sentences or were acquitted altogether. It has therefore been argued that this ‘earlier catastrophic effort’ served as a warning for the planners of Nuremberg.Footnote 45 Similarly, commentators often speak of the lessons of Nuremberg and Tokyo for the ICC. The progress of ICL has thus been achieved through trials and error.Footnote 46
Yet trials are a difficult and potentially dangerous pastime, afflicted by ICL's conflicting impulses or goals, which are ‘as ambitious as they are contradictory’.Footnote 47 Such trials are necessary for they ‘remind the world of the extraordinary power of the law to submit unprecedented atrocity to its institutional will’,Footnote 48 the message being that such events were an aberration and that order has been restored. Yet in situations of mass atrocity, such crimes can ‘explode the limits of the law’.Footnote 49 A country facing the immediate aftermath of an internal or international armed conflict is often unlikely to possess the requisite infrastructure or resources to hold such trials. As Alvarez reminds us: ‘We need to remember, with humility, that most of our national courts … have never successfully handled crimes of this magnitude.’Footnote 50 The sheer scale, organization and perpetration of such crimes are by their nature extraordinary, their depths difficult to fathom:
We drove through village after deserted village, some still smouldering. Garbage, rags and bodies intermingled at places where either an ambush or a massacre had occurred. We drove by abandoned checkpoints ringed with corpses, sometimes beheaded and dumped like rubbish, sometimes stacked meticulously beside neat piles of heads. Many corpses rapidly decayed into blinding white skeletons in the hot sun.Footnote 51
The trial and punishment of individuals accused of such crimes can therefore seem hopelessly insufficient:
The most common argument [against the death penalty] was that Eichmann's deeds defied the possibility of human punishment, that it was pointless to impose the death sentence for crimes of such magnitude—which, of course, was true, in a sense, except that it could not conceivably mean that he who had murdered millions should for this very reason escape punishment.Footnote 52
Making a similar point elsewhere, Arendt said: ‘It may well be essential to hang Goring, but it is totally inadequate.’Footnote 53
The fact remains that even perpetrators of genocide, ‘the crime of crimes’,Footnote 54 are still only subject to the same punishment as ‘ordinary’ criminals.Footnote 55 In the case of Rwanda, there was ‘considerable hypocrisy’ where ‘at least some of the U.N. members criticising … Rwandan executions for perpetrators who have been convicted of some of the most grievous offences known to humankind have themselves refused to forego the use of the death penalty with respect to ordinary offenders involved in crimes of much less gravity within their own borders’.Footnote 56 There certainly seems to be something both strange and inappropriate about the same international community, including those who failed to prevent the horror in Rwanda, still insisting on how those found guilty of such crimes should be punished.
1. Between military commissions and civilian trials
ICL's desire to punish also creates a tension between conducting a fair trial that seeks justice and performing a show trial that will guarantee it. According to Judith Shklar, the aim of a show trial is a very specific one: ‘the destruction, or at least the disgrace and disrepute, of a political opponent’.Footnote 57 On the one hand, for example, Slobodan Milošević could be said to have suffered death by due process; transferred to the ICTY on 29 June 2001, his trial was still ongoing when he died in custody nearly five years later, on 11 March 2006. At the other extreme, the outcome of the Moscow show trials of 1936 to 1938, coinciding with Joseph Stalin's Great Purge, was pre-determined from beginning to execution.
In a similar vein, a court is torn between its obligation to allow the accused (or their representatives) to present the case for the defence while simultaneously endeavouring to ensure that the proceedings are not undermined or derailed by that very evidence.Footnote 58 The conduct of the defence team in the trial of Klaus Barbie, a former head of the Gestapo during the Second World War and the so-called ‘Butcher of Lyon’, in 1987 is cited as a prime example of this danger,Footnote 59 with Barbie's defence being conducted entirely as an attack on the political system represented by the prosecution case.Footnote 60 The future trial of Khalid Sheikh Mohammed (KSM) (and his co-defendants) poses similar difficulties for the United States. Captured in Pakistan in March 2003, the man said to be the mastermind behind the terrorist attacks of 11 September 2001 still awaits trial. In 2008, KSM was charged with war crimes.Footnote 61
The phrase ‘war on terror’ was not intended to be a literal legal statement. However, the United States does assert that it is in armed conflict with Al Qaeda:
As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.Footnote 62
The consequence of this categorization by the United States is that international humanitarian law (the law of war) is said to apply. In practice, classifying the conflict with Al Qaeda in this manner has resulted in the creation of a quasi-permanent state of exception under which the acceptable threshold for violence has been considerably lowered and geographically widened. While the use of lethal force against civilians is normally governed by strict human rights standards, individuals who are deemed to be legitimate ‘military’ targets (combatants or civilians directly participating in hostilities) during an armed conflict may be lawfully targeted and killed.
In November 2009, Attorney General Eric Holder publicly announced that these men would be tried in federal court and ‘brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood’.Footnote 63 However, that statement proved to be extremely controversial. Some feared a civilian trial would be an ‘intelligence bonanza’ for Al Qaeda, forcing the government to produce sensitive intelligence information in open court.Footnote 64 Others were appalled at the thought of KSM being given the protection of the Constitution.Footnote 65 Andrew McCarthy, the former prosecutor in the trial following the 1993 World Trade Centre bombing, urged Eric Holder ‘not to wrap our enemies in our Bill of Rights’.Footnote 66 In a letter to the Attorney General, Senator Lindsey Graham argued that a civilian trial ‘would not only be a logistical nightmare and an enormous expense for taxpayers, but would harm our national security by criminalizing the war’.Footnote 67 In January 2010, Mayor Michael Bloomberg, previously an advocate for the trial being held in New York, withdrew his support.Footnote 68 Testifying before the Senate Judiciary Committee in April 2010, the Attorney General stated that no final decision had been taken about the forum in which to try these men.Footnote 69
That decision has now become clear. On 7 January 2011, with ‘strong objection’, President Obama signed into law the Ike Skelton National Defence Authorization Act for the fiscal year 2011.Footnote 70 That Act prevents funds being utilized to transfer detainees from Guantanamo Bay into the United States and prohibits the use of certain funds to transfer detainees to other foreign countries unless specific conditions are met. Further, on 7 March 2011, President Obama ordered the resumption of military commissions to try a number of detainees (including KSM and his co-defendants) still held in Guantanamo Bay.Footnote 71 This decision means keeping the Cuban prison open even longer; a facility that Barack Obama, both as a SenatorFootnote 72 and as President,Footnote 73 condemned and vowed to close.
The luxury of a trial, whether by military commission or otherwise, is something that many Al Qaeda fighters will not be given. The Obama administration has made frequent use of pilotless drones to perform reconnaissance and kill, rather than capture, perceived enemies.Footnote 74 Operated remotely with no risk to American lives, combined with an ability to reach otherwise inaccessible terrain, these unmanned aerial vehicles (UAVs) have become the weapon of choice for the United States in combatting terrorism. In 2010 alone, 118 such strikes are estimated to have taken place in Pakistan.Footnote 75 However, the growing practice of using drones has proved controversial. A lack of transparency or oversight in how targets are chosen, an inability to obtain external verification over their level of accuracy and their deployment outside acknowledged armed conflicts has meant that the legality of such strikes has been seriously called into question.Footnote 76
2. Historical and legal truth
There is then the questionable role of courts rushing in where historians fear to tread. While a court is directly faced with the circumstances of the accused and the determination of their particular fate, it cannot be blind to the context in which such crimes have occurred. However, in describing that context, the court walks a tightrope between delivering criminal judgment and providing historical narrative.Footnote 77 Describing the trials of the major Nazi figures at Nuremberg, Shklar observed: ‘History had to be tortured throughout in order to reduce events to proportions similar to those of a model criminal trial within a municipal system.’Footnote 78 Robert Jackson, the United States chief prosecutor, did not deny the unique difficulties involved in such an exercise or, indeed, the inevitable imperfections: ‘Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole continent, and involving a score of nations, countless individuals, and innumerable events.’Footnote 79
Moreover, as Koskenniemi explains,
No matter how much judges may seek to proceed in good faith towards their judgments, the context of the trial cannot—unlike the history seminar—be presumed to manifest good faith on everybody's part. Much is at stake for the protagonists—that is the nature of the trial—and no truth can remain sacred within it.Footnote 80
The inevitable lapse of time (usually a considerable period) between alleged perpetration and possible punishment, and the death or disappearance of witnesses and victims or, indeed, of the accused themselves also hinders the holding of such trials.Footnote 81 That said, the intervening death of Pol Pot, and the passage of more than thirty years since the fall of the Khmer Rouge, did not prevent the creation of the ECCC.Footnote 82
3. Deterrence
While commentators such as Akhavan support the role of ICL in seeking to prevent future atrocities, he does concede that ‘measuring the capacity of punishment to prevent criminal conduct is an elusive undertaking, especially when a society is gripped by widespread habitual violence and an inverted morality has elevated otherwise “deviant” crimes to the highest expression of group loyalty’.Footnote 83 In such situations, Osiel notes, a paradox occurs: ‘A murderer usually deviates from social norms, yet conforms to them in these cases.’Footnote 84 Arendt perhaps explains the matter best: ‘The trouble with [Adolf] Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal … this new type of criminal, who is in actual fact hostis generis humani, commits his crimes under circumstances that make it well-nigh impossible for him to know or feel that he is doing wrong.’Footnote 85 Indeed, while Eichmann may have been a ‘desk-murderer’ whose ‘paperwork lubricated the wheels of deportation and destruction’, millions of other Germans were also complicit in the genocidal effort.Footnote 86 As Gary Bass explains, ‘men [and it is usually men] willing to commit mass murder are terribly difficult to dissuade’: the massacre of thousands of Bosnian Muslims at Srebrenica took place in 1995, two years after the creation of the ICTY.Footnote 87 The deterrence value of ICL is therefore questionable, although legal proceedings may at least help to prevent the denial that such crimes even took place.Footnote 88
The growing maturity of the ICC could, potentially, have a deterrent effect. Even so, this can only be a lopsided one given its limited scope; the ICC only possesses the potential to affect the behaviour of certain actors in certain countries. Moreover, even in those countries within the ICC's jurisdiction, it cannot hope to bring each and every alleged crime before it. According to Bassiouni, of the 313 conflicts that took place worldwide between 1945 and 2008, an estimated 92 million people have been killed, with one million perpetrators responsible (these are minimum estimates), yet only 866 prosecutions have taken place.Footnote 89 Even if they are aware of these figures, are potential perpetrators likely to be deterred by such odds? Moreover, if one takes heed of Alvarez's ‘paramount lesson’ and is ‘responsive to the idiosyncratic conditions that give rise to massive violations of human rights’ it is difficult not to have a healthy scepticism of the ability of international justice delivered by the ICC (or perhaps another body yet to materialize) to prevent future atrocities, each with individualistic root causes, rather than simply to provide retrospective punishment.Footnote 90
In sum, if one takes on board all of these critiques (which are by no means exhaustiveFootnote 91) of ICL's weapon of choice: the inadequacy of punishment, the inescapably small proportion of perpetrators who end up on trial, the questionable accuracy and desirability of legal truth,Footnote 92 the doubts over deterrence and the unpredictable (and perhaps embarrassing) nature of the evidence given by the accused or their legal defence team, it seems clear that ICL must continue to broaden its horizons beyond the courtroom in order to justify its own existence.
D. A World Elsewhere
Some societies, rightly or wrongly, have not thought the tool of the conventional criminal trial, at least in and of itself, to be capable of producing a lasting peace. The Truth and Reconciliation Commission created at the end of the apartheid era in South Africa and the use of Gacaca courtsFootnote 93 in Rwanda following the 1994 genocide are but two examples of alternative, transitional, justice. In Teitel's words: ‘law here is not mere product but itself structures the transition’.Footnote 94
Indeed, while ICL has become synonymous with international criminal tribunals such as Nuremberg, Tokyo and latterly the ICC, there is, to borrow Lord Bingham's words, ‘a world elsewhere’.Footnote 95 After all, ICL has never been strictly international, criminal or even law. In this regard, it is clear that the application and development of ICL is not the sole province of the international criminal tribunal. Bespoke tribunals such as the STL and ECCC—and, of course, national courts—have an important role to play in this regard:
The fascination of jurists with international criminal tribunals has often eclipsed the fundamental role of national jurisdictions in eradicating impunity for international crimes … It is thus time for the star-gazing international jurist to shift his focus from the zenith to the nadir on the horizon of global justice to ensure that local justice is a fully integrated element of the struggle against impunity.Footnote 96
Furthermore, while the criminal trial is quintessentially ICL, allowing ‘the construction of a permanent, unmistakeable wall between the new beginnings and the old tyranny’,Footnote 97 it is not the only environment in which the field of ICL may appear. The International Court of Justice (ICJ) has, for example, continued to adjudicate over cases that concern matters of ICL.Footnote 98 The ICJ has dealt with the issuance of an arrest warrant by Belgium pursuant to its universal jurisdiction laws against the then incumbent Foreign Minister of the Democratic Republic of Congo (DRC),Footnote 99 genocide (and the failure to prevent it) in a recent case between Bosnia and Herzegovina and Serbia and Montenegro,Footnote 100 and now the obligation to prosecute or extradite the former President of Chad, Hissène Habré,Footnote 101 in a current dispute between Belgium and Senegal.Footnote 102
In addition, it is not unusual for the survivors or families of victims of torture, genocide or crimes against humanity to seek redress through domestic civil proceedings.Footnote 103 Clearly such litigation does not result in a criminal conviction or sentence, and any successful award may not even be enforceable. Nonetheless, such actions do place control in the hands of the victims and, at the very least, provide both publicity to their cause and perhaps some element of catharsis. Since the seminal decision of the United States Court of Appeals Second Circuit in Filartiga v Pena-Irala,Footnote 104 perhaps the best known use of civil law in this way has been the revival of the 1789 Alien Tort Claims Act, which has seen a number of such claims.Footnote 105 The 1991 Torture Victim Protection Act has also been utilized in the same manner, most recently in the United States Supreme Court by a group of Somali nationals seeking damages for alleged acts of torture and other abuses carried out by government agents said to be under the command of Mohammed Ali Samantar, former Minister of Defence and Prime Minister in Somalia.Footnote 106
In the past, this resort to domestic remedies could perhaps be explained by the lack of opportunities afforded to victims to express themselves at the level of an international criminal tribunal.Footnote 107 As Mettraux notes:
Prior to the signing of the Rome Statute, victims had either been ignored altogether by international criminal tribunals or their role restricted to the status of witnesses. In that capacity, victims were dependent on the prosecution's strategies and on its decision to make them a part of its case.’Footnote 108
That situation has now changed. In addition to the ICC, the STL, for example, permits victims to examine and cross-examine witnesses subject to judicial authorization. However, while this increased (and in-built) participation by victims has been hailed as a ‘momentous advance’ in ICL,Footnote 109 such an opportunity has also created both challenges and risks.Footnote 110 Prominent among these is the effect of victim participation upon the length and cost of proceedings (already significant concerns in ICL) and deciding and defining who is actually a ‘victim’. The impact upon the impartiality of the proceedings has also been expressed as a significant concern.Footnote 111
Serving a not dissimilar purpose to such domestic litigation, unofficial trials can also have their place. The Women's International War Crimes Tribunal, which sat in Tokyo in 2000,Footnote 112 and the Vietnam War Crimes Tribunal created by British philosopher Bertrand Russell, which sat in Stockholm and Copenhagen in 1967,Footnote 113 are prominent examples.
ICL can also appear outside the legal sphere altogether. On 4 March 2010, the United States House of Representatives Foreign Affairs Committee passed a resolution (narrowly approved by 23 votes to 22) describing the mass deportation and killing of Armenians by the Ottoman Empire during the First World War as genocide. Chairman Howard Berman stated:
Germany has accepted responsibility for the Holocaust. South Africa set up a Truth Commission to look at Apartheid. And here at home, we continue to grapple with the legacies of slavery and our horrendous treatment of Native Americans. It is now time for Turkey to accept the reality of the Armenian Genocide.Footnote 114
The Obama administration, however, distanced itself from that description.Footnote 115
That ICL should show its face in these (perhaps unexpected) places should not be surprising or unwelcome. Political will, or a lack of it, is vital to whether ICL will ever enter the equation at all: ‘the vigilance of international criminal justice will ensure that crimes do not fall into oblivion, undermining the prospect of an easy escape or future political rehabilitation’.Footnote 116 The resort to civil remedies in national courts, unofficial tribunals, the ICJ or even the political sphere itself may well serve to generate or maintain that will. After all, provided it is effective, the method of delivery is unlikely to matter to the victims and their families simply trying to prevent ‘the crime of silence’.Footnote 117
III. THE INTERNATIONAL CRIMINAL COURT
Only an international court can properly try international crimes. Consequently, for the repression of crimes against the peace, war crimes, crimes against humanity and genocide, an international court is essential.Footnote 118
In my opinion the cons outweigh by far the pros. A permanent judicial criminal organ established in the actual organisation of the international community would be impaired by very serious defects and would do more harm than good. The time cannot as yet be considered ripe for the establishment of such an organ.Footnote 119
The ICC is undoubtedly the jewel in the crown of ICL. On 18 July 1998, at a ceremony to celebrate the adoption of the Rome Statute of the ICC, the United Nations Secretary General Kofi Annan described its establishment as ‘a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law’.Footnote 120 The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries. As of 15 December 2011, 120 countries had become States parties.Footnote 121 Nevertheless, while the ICC's creation was a remarkable step forward, the idea of establishing a permanent institution was far from new. In fact, Gustave Moynier, a founder of the International Committee of the Red Cross, appears to have made the first serious proposal for such a body in 1872.Footnote 122 What then, to borrow Bassiouni's words, explains all the ‘years of silence’ that lay between?Footnote 123 Cassese explains that attempts were certainly made: notably article 227 of the Treaty of Versailles, which spoke of the establishment of a five-member tribunal to try the former Kaiser of Germany.Footnote 124 However, all such attempts were aborted as they ‘could not bear fruit in a period which placed an exceptionally high premium upon considerations of national sovereignty’.Footnote 125 Consequently, ‘no feasible mechanism could be brought into being that could enable a State official—let alone a Head of State … to be brought to justice, save by a victor State following an international armed conflict’, as of course happened at Nuremberg and Tokyo.Footnote 126 In more recent times, ‘Justice was the Cold War's casualty.’Footnote 127
In any event, despite the Rome Statute's expressed determination to ‘put an end to impunity’, it is worth recalling that ‘The object of a functioning international criminal court … is not to prevent history from repeating itself (we are, after all, condemned to repetitious exercises of violence in a world of sovereign States), but rather to tell us when we do.’Footnote 128 Those expecting the ICC to be inundated with referrals to try the world's most wanted war criminals will have been sorely disappointed. Such an expectation ignores the relationship of the ICC with national courts, the limits of its resources and the cooperation (or lack thereof) from both States parties and non-States parties.
A. Stand (Trial) or Deliver: Relationship with National Courts
The ICC is not at the apex of an institutionalized hierarchy in an international criminal justice system. Unlike the ICTR or ICTY, it does not exercise primacy over national courts;Footnote 129 its jurisdiction is expressly stated to be complementary to national courts, deferring to them and acting only where a State party is genuinely unable or unwilling to carry out the investigation or prosecution.Footnote 130 Therefore, as ICC Prosecutor Luis Moreno-Ocampo has explained, ‘As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.Footnote 131
B. Current Caseload
Seven situations are presently before the ICC, concerning (in chronological order of when the decision to order an investigation was made) Uganda, the DRC, the Darfur region of Sudan, the Central African Republic (CAR), Kenya, Libya and, most recently, Côte d'Ivoire.Footnote 132 This concentration of African cases has led some commentators to allege a form of selectivity or ‘legal colonialism’ on the part of the ICC.Footnote 133 However, speaking at a public lecture, the current President of the ICC, Sang-Hyun Song, was keen to dispel such accusations.Footnote 134 As highlighted by President Song, three of the five situations at that time (Uganda, the DRC and the CAR) were self-referrals by the countries themselves, one situation was a referral by the Security CouncilFootnote 135 (Darfur) and the situation in Kenya was authorized by Pre-Trial Chamber II on 31 March 2010Footnote 136 to be investigated following a request by the ICC Prosecutor using his proprio motu powers.Footnote 137 Therefore, while article 13 of the Rome Statute does allow the ICC discretion in whether to exercise its jurisdiction in view of a referral by a State party or the Security Council, or of the initiation of an investigation by the Prosecutor, any suggestion of ‘cherry-picking’ cases was firmly rebutted. To reinforce that message of neutrality and universality, President Song emphasized that the Office of the Prosecutor (OTP) was also conducting preliminary analysis of situations in Afghanistan, Columbia, Côte d'Ivoire, Georgia, Guinea, Honduras, Korea, Nigeria and Palestine at present.Footnote 138
President Song's remarks on the ICC's situation selection are certainly reassuring, and the investigation work of the OTP around the world is encouraging. Nevertheless, the ICC continues to be undermined by the fact that countries such as the United States, China, Russia and India have refrained from joining. As arguably the great power at present, the United States' relationship with the ICC is now considered.
C. Relationship with the United States
The relationship between the United States and international law—in particular the ICC—is well documented (and lamented by some).Footnote 139 Following the swearing in of a new President on 20 January 2009, there has been a natural period of reflection regarding the previous Bush administration and of looking ahead to the promise of the Obama administration.
2002 was an annus horribilis for the United States and the ICC.Footnote 140 The ‘unsigning’ of the Rome StatuteFootnote 141 remains a low point in the relationship, described by John Bolton (then United States Ambassador to the United Nations), as ‘the happiest moment of my government service’.Footnote 142 No less inflammatory was the passing into law of the American Service-members’ Protection Act, also known as the ‘Hague Invasion Act’, and the subsequent ‘negotiation’ (against the backdrop of the Nethercutt Amendment) of hundreds of bilateral immunity agreements, commonly known as article 98 agreements,Footnote 143 between the United States and countries around the world in order to prevent the surrender or transfer of American citizens or military personnel to the ICC without express consent.Footnote 144 Moreover, at the insistence of the United States, the Security Council passed Resolution 1422 that year, securing immunity for the peacekeepers of non-States parties from investigation or prosecution by the ICC.Footnote 145
Yet John Bellinger, former legal adviser to the State Department from 2005 to 2009, has insisted that ‘the story [of the ICC and the United States] is sometimes framed as that of a superpower unwilling to accept any fetters on its freedom to act … but it happens not to be true.’Footnote 146 In fact, he argues:
Because we take our international obligations seriously, we do not enter into them lightly … The result is that the United States can look like a laggard or malingerer, reluctant to make an international commitment. Ironically, in such cases we take a bigger reputational hit than those countries that join but then utterly fail to comply.Footnote 147
Nevertheless, this attempted charm offensive has largely fallen on deaf ears. A thawing of relations did appear to take place in 2005 when the United States' abstained from voting in the United Nations Security Council, thus allowing the situation in the Darfur region of Sudan to be referred to the Prosecutor of the ICC under Resolution 1593. The United States also supported the move from Freetown to The Hague to allow the SCSL to use ICC facilities for the trial of the former Liberian President Charles Taylor.Footnote 148 However, many (if not all) of these positive efforts were overshadowed by the 2003 invasion of Iraq (perceived by many as illegal),Footnote 149 the abuses that took place at Abu Ghraib prison and Guantánamo Bay and the release of the torture memoranda.Footnote 150 Such events have tarnished the reputation of the Bush administration beyond repair.
Has the Obama administration heralded a substantive change in the United States' relationship with the ICC and international law more generally? A number of signs are certainly encouraging. For example, in February 2011, under Security Council Resolution 1970, the United States voted in favour of referring the situation in Libya to the ICC, rather than merely abstaining.Footnote 151 Further, Stephen Rapp, the Ambassador-at-large for War Crimes Issues, has spoken of the United States' respect for the right of every country to join the ICC.Footnote 152 The Secretary of State, Hillary Clinton, has also expressed ‘great regret’ that the United States is not yet a signatory to the Rome Statute.Footnote 153
Nevertheless, with the facility at Guantanamo Bay still open and the war against Al Qaeda ongoing, John Bellinger suggested that the international community should expect ‘more continuity than change’.Footnote 154 In a recent address, Harold Koh, legal adviser to the State Department, delivered a riposte:
[O]f course, in foreign policy, from administration to administration, there will always be more continuity than change; you cannot simply turn the ship of state 360 degrees … But … to say that is to understate the most important difference between this administration and the last; and that is with respect to its approach and attitude towards international law … an emerging ‘Obama–Clinton Doctrine’.Footnote 155
That doctrine can be broken down into four core commitments: principled engagement, smart power, strategic multilateralism and the living of values by respecting the rule of law.Footnote 156 This new ‘era of engagement’ culminated in the United States' attendance as an observer at the 2010 ICC Review Conference.Footnote 157
D. Review Conference of the Rome Statute
From 31 May to 11 June 2010, a Review Conference of the Rome Statute took place in Kampala. The first of its kind, the event presented an opportunity both to ‘take stock’ of the work of the ICC so far and to look ahead and ‘build for the future’.Footnote 158
1. Article 124 amendment
At the opening of the Review Conference, the UN Secretary General Ban Ki-Moon remarked: ‘The old era of impunity is over. In its place, slowly but surely, we are witnessing the birth of a new Age of Accountability.’Footnote 159 In spite of those words, article 124 of the Rome Statute, which allows States parties to declare that war crimes committed by their nationals or on their territory do not fall within the jurisdiction of the ICC for a period of seven years after the entry into force of the Rome Statute for the State concerned, was retained.Footnote 160 France and Columbia remain the only two countries to have utilized the provision, yet opposition to its removal from countries such as China, Japan and the Philippines, on the rationale that it would ‘remain attractive to the significant number of countries that are not yet part of the ICC processes’, was successful.Footnote 161 As Joanna Harrington has explained, ‘Article 124 is dangled as a carrot to achieve universality, with those who support retention arguing that there is nothing to lose since the provision is already in the Statute.’Footnote 162 However, surely even the achievement of universality at this cost would be a pyrrhic victory.Footnote 163
2. Article 8 amendment
An amendment to article 8(2)(e) of the Rome Statute was also adopted. Serious violations of the law and customs applicable in non-international armed conflicts now mirror those of international armed conflicts in respect of poison, poisoned weapons, asphyxiating gases and expanding bullets.Footnote 164
3. Aggression
I am committed as anyone to international law and its obligations, but it is an uncertain field. There is no international court for resolving such questions in the manner of a domestic court. Moreover, in this case, the issue is an arguable one, capable of honestly and reasonably held differences of view.Footnote 165
At Nuremberg, the judges of the International Military Tribunal (IMT) determined that ‘To initiate a war of aggression … is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.’Footnote 166 Yet, despite wearing that weighty label, and notwithstanding its status as a crime under customary international law,Footnote 167 aggression was, until very recently, still described as ‘a crime in search of a definition’.Footnote 168 In fact, attempts to rectify that situation have been described as ‘a history of failure, punctuated by rare glimpses of success’.Footnote 169 Ironically perhaps, the desire to define and condemn acts of aggression has been matched, if not bettered, by an opposing wish to see the crime remain undefined, or defined but only to operate as a dead letter. Predictably, States have been in no hurry to define aggression and risk facing the stigma and punishment that such a finding by the ICC would entail. While happy to denounce such behaviour in the abstract, States are not disinterested bystanders in this process of law creation. At Nuremberg, of course, the IMT was in a somewhat easier position to make such a finding, with prosecution and judgment carried out ‘by victor nations over vanquished foes’.Footnote 170 Back in the present, however, one would expect to see the dragging of feet by States possessing considerable military strength; they do not wish to see the Rome Statute emasculate or punish them for exercising that very strength.
Second, even if agreement regarding a definition can be reached, States can deliberately and effectively chose to define a crime into extinction. For example, in the ‘war on terror’, even if the Bush administration had genuinely abhorred the use of torture, the memoranda produced by its legal advisers tacitly served to endorse or legitimize all interrogation methods, regardless of brutality, provided these methods fell below their designated (and extremely demanding) threshold required to constitute torture.Footnote 171 This had the paradoxical consequence of simultaneously condemning torture but making it nearly impossible to find an act grotesque enough to satisfy its definition.Footnote 172 Such an approach distracted from asking what was humane or acceptable conduct and instead encouraged a policy of pushing the boundaries of what was permissible as close as possible to what could be justified as legal.Footnote 173 In so doing, the result, by accident or design, was an attempt to convert a crime of malum in se into one merely of malum prohibitum.
Aggression, as defined at the Review Conference, requires ‘planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’Footnote 174 As a leadership crime, the balance of ICL is struck very much in favour of individual criminal responsibility over collective guilt in this instance. One recalls the words of Robert Jackson at Nuremberg:
We would also make clear that we have no purpose to incriminate the whole German people … We want to reach the planners and the designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and wracked with the agonies and convulsions, of this terrible war.Footnote 175
Figuratively speaking, it is often remarked that Adolf Hitler invaded Poland in 1939. Such language conjures up an image of the man marching across the border by himself. Alternatively, it is also said that Germany as a nation was the invader; yet it was not each and every German who participated in this offensive. While the reality lies somewhere in between these two-dimensional portrayals of history, ICL has embraced both of these extremes during different periods. In fact, ICL seems deliberately to avail itself of selective memory or skewed recollection. For example, after the First World War, the Treaty of Versailles took a root-and-branch approach, its draconian provisions arguably over-zealous and overreaching in punishing all of Germany as a criminal State.Footnote 176 In the wake of the Second World War, the Nuremberg IMT and its progeny have instead insisted on isolating and removing only the bad apples, relying on what Simpson calls the ‘fiction of detachability’.Footnote 177 As AJP Taylor explains:
He [Hitler] was safely dead … No amount of posthumous guilt could injure him. The blame for everything … could be loaded on to his uncomplaining shoulders. With Hitler guilty, every other German could claim innocence; and the Germans, previously the most strenuous opponents of war-guilt, now became its firmest advocates.Footnote 178
While the likes of Joachim von Ribbentrop, Julius Streicher and Hermann Goering cannot seriously be compared to the ‘vice-president responsible for going to jail’,Footnote 179 the focus on these public faces of the Third ReichFootnote 180 undoubtedly magnifies their responsibility while acting as a diversion from the guilt of many others. While victims are never meant to be forgotten,Footnote 181 certain perpetrators frequently are. Catharsis, it seems, involves both remembering and forgetting in equal measure.
In the context of aggression, Harold Koh recently said that ‘our [the United States'] views are well-known: that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred’.Footnote 182 Yet it is quite obvious that such a jurisdictional trigger would turn the crime of aggression into a paper tiger. By leaving ‘a central factual issue in a judicial debate … to what is essentially a political body’, the prosecution of a permanent member of the Security Council would be virtually impossible since, in reality, it would be asking them to sign their own arrest warrant.Footnote 183 While the Review Conference chose (wisely in my view) not to follow the advice of the United States in this regard,Footnote 184 there are still more than enough nails in the crime's coffin.Footnote 185
While States create and join tribunals such as the ICC to enhance the credibility of their international commitments,Footnote 186 they can also impose restraints to mitigate the risk of having done so. These restraints can be a structural part of the regime in question, or more informal, as with Hirschman's options of exit (the threatened or actual withdrawal from the institution in question) and voice (the voicing of criticism and displeasure with a view to exerting pressure and facilitating (favourable) institutional change).Footnote 187 A recent example of ‘exit’ may be seen in the decision of the United States in March 2005 to withdraw from the Optional Protocol to the 1963 Vienna Convention on Consular Relations, thus ending the possibility of recourse to the compulsory jurisdiction of the ICJ for disputes arising out of the 1963 Convention.Footnote 188
In this instance, the cost of defining aggression has been the creation of formidable structural restraints. The ICC will not exercise jurisdiction over aggression until a year after 30 States parties have ratified or accepted the amendments agreed at the Review Conference.Footnote 189 Even if those ratifications are obtained, the earliest date at which jurisdiction could be exercised is subject to a decision to be taken after 1 January 2017 by the same majority of States parties required to adopt an amendment to the Rome Statute.Footnote 190 That of course means a wait of at least five years, if not longer. Moreover, the crime punishable by the ICC will not extend to the territory or nationals of non-States parties, unless the referral is made by the Security Council.Footnote 191 States parties may also lodge a declaration with the Registrar of the ICC to confirm that they do not accept the ICC's jurisdiction for this crime. The decision to make that declaration must only be ‘considered’ by a State party within three years of having made it.Footnote 192
E. Justice, Peace and Realpolitik
The ICC's decision to indict the President of Sudan, Omar al-Bashir, split the international community.Footnote 193 While the African UnionFootnote 194 and ChinaFootnote 195 opposed the move, other countries, such as the United Kingdom and United States, openly supported it.Footnote 196The Economist magazine described the difference of opinion in the following terms: ‘Justice must give way to peace, pragmatists cry. But there can be no lasting peace without justice, idealists reply.’Footnote 197 However, whether the concerns either for or against the prosecution going ahead are for completely altruistic reasons is open to question, given the country's natural resources.Footnote 198 A second arrest warrant issued against the Sudanese President on 12 July 2010, this time containing charges of genocide, suggested that the so-called ‘idealists’ had gained the upper hand.Footnote 199 The opening speeches of past and present UN Secretaries General, Kofi AnnanFootnote 200 and Ban Ki-Moon,Footnote 201 at the Review Conference appeared to confirm this. However, a recent visit by al-Bashir to Chad, his first to an ICC member State since a warrant was issued for his arrest in 2009, passed uneventfully. The Chadian Interior and Security Minister confirmed that the Sudanese President would not be arrested; maintaining a good relationship between the two countries was said to be more important.Footnote 202
It has been said that ‘instant gratification is not within the culture of international law’.Footnote 203 The ICC is living proof. However, the source of its strength is undoubtedly its persistence. While regimes change, the court will remain. Hopefully, in time, joining can become a sine qua non of respected membership in international society. In this respect, the attitude of the Obama administration has been particularly encouraging. One fears, however, that the crime of aggression, if pursued, could result in the ICC overreaching, thus isolating itself from the support it needs and risking the wheels of this ‘wobbly bicycle’ coming off altogether.Footnote 204 Only time will tell.
IV. UNIVERSAL JURISDICTION
[A]ny universal system should contain procedures not only to punish the wicked but also to constrain the righteous. It must not allow legal principles to be used as weapons to settle political scores.Footnote 205
I reject the tendency of legal scholars to reduce universal jurisdiction to an abstract legal question. On the contrary, it is hard to think of a more political question.Footnote 206
Universal jurisdiction is said to be ‘based solely on the nature of the crime’.Footnote 207 This means ‘that a State, without seeking to protect its security or credit, seeks to punish conduct irrespective of the place where it occurs, the nationality of the perpetrator, and the nationality of the victim’.Footnote 208 In theory, therefore, it should be exercised without fear or favour, focused on the crime and not the perpetrator. In reality, it is probably the most contentious base of jurisdiction that can be exercised. This controversial concept was once again brought to the fore by the issuance of an arrest warrant by Westminster magistrates' court in London in respect of the former Israeli Foreign Minister Tzipi Livni in December 2009.Footnote 209
Established by the President of the Human Rights Council in April of 2009, the UN fact-finding mission on the Gaza conflict led by Richard Goldstone, a former prosecutor of the ICTR and ICTY, presented its findings in a report (the Goldstone Report) on 29 September 2009.Footnote 210 In conducting ‘Operation Cast Lead’ between 27 December 2008 and 18 January 2009, Israel was found by the Goldstone Report to have committed grave breaches of the Fourth Geneva Convention, war crimes and, possibly, crimes against humanity during its military operations in the Gaza Strip. The Israeli system of investigations into the allegations of serious violations by its military personnel was also found not to comply with international standards of impartiality, independence, promptness and effectiveness. Pursuant to those findings, the Goldstone Report supported the use of universal jurisdiction as a weapon for States to prevent impunity.Footnote 211 Against that background, an arrest warrant was sought and issued in London. Livni's scheduled visit to the city was cancelled.Footnote 212
The incident provoked a diplomatic row with Israel. The then British Prime Minister Gordon Brown stated (somewhat paradoxically) in response that ‘Britain cannot afford to have its standing in the world compromised for the sake of tolerating such gestures’, yet, in the very same article, reiterated that Britain ‘remained absolutely committed to upholding the principles of universal jurisdiction’ and that it was ‘our moral duty to ensure that there is no hiding place for those suspected of the most serious international crimes’.Footnote 213
The government subsequently sought to amend the law. Speaking in the House of Commons, the Secretary of State for Justice at the time, Jack Straw, explained that there was ‘reason to believe that the risk of arrest may discourage prominent people, with whom HM Government would wish to engage, from visiting this country’.Footnote 214 Such a statement is self-evident. However, as Michael Mansfield QC has suggested, perhaps one should be ‘less concerned about foreign politicians feeling able to visit … than about foreign politicians feeling able to commit war crimes’.Footnote 215
Previously in England and Wales, it was open to any private individual to commence criminal proceedings and apply to a magistrate for an arrest warrant. While the consent of the Attorney-General was required for a prosecution to proceed, that consent was not necessary for the issue of an arrest warrant. However, the Government wished to remove the right of private individuals to bring a private prosecution for offences subject to universal jurisdiction, instead proposing to reserve this right for the Crown Prosecution Service (CPS).Footnote 216 The proposal was met with strong resistance from organizations such as LibertyFootnote 217 and JUSTICEFootnote 218 and was postponed until after the 2010 General Election.Footnote 219
On 22 July 2010, the Coalition Government announced its own intention to reform the law: this time, by requiring the consent of the Director of Public Prosecutions (DPP) before an arrest warrant could be issued for a private prosecution for offences subject to universal jurisdiction.Footnote 220 While not entirely handing over the decision-making process to the CPS, as the previous Labour government had suggested, the coalition's proposal still required the DPP, head of the CPS, to provide his consent. It thus seemed simply to be a different, albeit more aesthetically pleasing, way of reaching the same goal. Both proposals appeared to be overkill: if the evidential threshold required for the issuance of an arrest warrant is the underlying problem, surely raising that threshold would be the simplest answer?Footnote 221 Nevertheless, on 15 September 2011, the Police Reform and Social Responsibility Bill received Royal Assent. Under section 153 of the new Act, no arrest warrant can now be issued in a private prosecution without the consent of the DPP.
Following this legislative change, Ms Livni visited the United Kingdom on 6 October 2011. However, the new section 153 mechanism still remains untested. While an arrest warrant was, once again, sought for the former Israeli Foreign Minister, the British Government granted her visit the status of a ‘special mission’, thus entitling Ms Livni to receive diplomatic immunity from prosecution and removing the opportunity for the new provision to be tested. Consequently, the DPP, despite acknowledging having received a ‘body of information’ in relation to the arrest warrant application, refused to grant his consent.Footnote 222
Writing shortly after the third House of Lords decision concerning Augusto Pinochet, Christine Chinkin remarked that ‘It is now possible to talk of the global enforcement of human rights.’Footnote 223 One wonders whether Professor Chinkin, as a member of the Goldstone fact-finding mission, would still hold the same opinion following the Livni incident. That episode confirms that the exercise of universal jurisdiction is never carried out in a political vacuum and is ‘anything but universal in practice’.Footnote 224 The arrest of Ejup Ganić, former President of Bosnia and Herzegovina, at Heathrow Airport in 2010 is another case in point.Footnote 225
In conclusion, at least two fatal flaws beset the exercise of universal jurisdiction and therefore hinder its effectiveness as an instrument of universal criminal justice. First, it is assumed (wrongly) that States always share a common zeal to capture the same foe. This is very often a fallacy, for political figures are divisive: ‘The background to the case is that to those of the left-wing political convictions Senator Pinochet is seen as an arch-devil: to those of right-wing persuasions he is seen as the saviour of Chile.’Footnote 226 The second flaw is a matter of self-preservation. States are not blind to the consequences of capturing alleged war criminals, tyrants or dictators, which may lead to them becoming a pariah themselves.
V. CONCLUSION
The laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street.Footnote 227
[L]et's face it, war criminals are viewed as war heroes in their own countries.Footnote 228
If, as Simpson suggests, ICL consists of a series of relationships or tensions,Footnote 229 then one of the strongest and overarching of these is between lex lata and de lex ferenda: what ICL actually is and what it should be. Put another way, ICL finds itself constantly caught between Koskenniemi's ‘twin dangers of apologism and utopianism’.Footnote 230 At times, it can be the worst of both.
One need look no further than the Review Conference. At its opening, the UN Secretary General declared a new ‘age of accountability’ and, at its end, the participants adopted a Declaration concerning cooperation.Footnote 231 Yet, while the ICC has issued charges of genocide against President al-Bashir of Sudan, Chad, Kenya and Djibouti have refused to arrest him. Second, article 124, a ‘Transitional Provision’ of the Rome Statute suspending war crimes jurisdiction, was retained. Third, the crime of aggression was defined but is filled with loopholes. Moreover, if one was uneasy at the suggestion of the Security Council making a judicial determination, how are States likely to view the legitimacy of judges at the ICC making retrospective assessments of their foreign policy or national security needs?Footnote 232
In sum, ICL would continue to disappoint Schwarzenberger today and, one suspects, for a great deal longer. Frankly, he expected too much. Partiality and selectivity pervade ICL, whether one is discussing its crimes, subjects or places. It is prevalent in situations of inequality and historically has been shaped by the prerogatives of victors imposed on the vanquished. Where the lines of a battlefield have become more difficult to draw, ICL can and has been utilized against designated enemies. Non-State actors such as Al Qaeda, for example, have been excluded from the formulation of the laws of war (being the prerogative of States) and from the ambit of their protection (by denying prisoner-of-war status, for example) but are still expected to abide by these laws (and condemned for war crimes if they do not), despite numerical or technological inferiority.Footnote 233
That inequality of influence also extends to States. They are the creators, supporters and enforcers of ICL, but ‘are by their nature certainly not equal’.Footnote 234 Consequently, their ability to develop or inhibit ICL is not uniform. Sometimes, ‘Might … is right’.Footnote 235 The ICC (beholden to the principle of complementarity) or the exercise of universal jurisdiction (being inherently political) cannot alter that fact. Indeed, while the ICC may, as President Song suggests, investigate all situations before it with an open mind and equal vigour, the neutrality of the court once it has been engaged must be distinguished from the politicized environment in which situations are (or are not) referred to it in the first place.Footnote 236 The ICC must be assessed as much by the situations it does not (or cannot yet) deal with as by those it does.
In a famous dissent, Justice Harlan of the United States Supreme Court once remarked: ‘Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens … The humblest is the peer of the most powerful.’Footnote 237 The same cannot be said among States and the enforcement of ICL. In fact, international law can be (and is) used to reinforce inequality among states and punish those deemed ‘mad, bad or dangerous’.Footnote 238 For example, the imposition of sanctions against Iraq following the invasion of Kuwait has been described as a ‘paradigmatic case of outlawry’Footnote 239 but also as the ‘legalization of atrocity’.Footnote 240
The problem of ICL remains that it is universal in ambition but still very much national in terms of participation, co-operation and application. It is true that the ICC has arguably established a core irreducible minimum of crimes, and even great powers wish to ‘see themselves as acting in the shadow of international law’.Footnote 241 Nevertheless, the ICC leans heavily on the crutch of complementarity and the schizophrenic role of States as law makers, breakers and enforcers is a perennial problem: ‘[for] often, the shadow they see is their own’.Footnote 242 Crucially, the application and enforcement of ICL cannot be divorced from the identity of the protagonists involved.Footnote 243 Consequently, a system of universal criminal justice still remains a long way out of reach.
