World Federalists Issues Action Briefing Paper No. 42
March, 1998
For an Effective International Criminal Court:
Canada's Leadership will be Essential

Summary Statement

The United Nations General Assembly has set June 15 to July 17, 1998 as the dates for the Diplomatic Conference in Rome to create the International Criminal Court (ICC). The Court will investigate and prosecute persons accused of genocide, crimes against humanity and serious war crimes where national courts are either unavailable or ineffective. The impunity currently enjoyed by the architects of this century's worst massacres underscores the urgent need for the ICC.

By creating a permanent body for the application of international criminal law, the international community not only puts in place a new institution to help maintain peace and uphold justice. International law evolves in a progressive manner through the development of institutions which make individuals more accountable internationally.

It is therefore imperative that the new International Criminal Court be effective and adequately funded. It should have a strong, independent Prosecutor. It should not be under the influence of other parts of the international system or other organs of the UN. And it should deal consistently and reliably with the most serious crimes of concern to the international community.

Progress to date on the creation of the ICC can be attributed principally to two factors: the commitment of the "like-minded" states and the persistence of non-governmental organizations (NGOs). Consistent with the new model of post-Cold War diplomacy, heralded by the successful campaign to eradicate landmines in 1997, a bloc of small and medium-sized states, the "like-minded" group, have established themselves as the leading force for an effective and independent Court. Canada, as Chair of the like-minded group, has a pivotal role in the process.

By the time of this summer's diplomatic conference in Rome, ICC negotiators will have completed six Preparatory Committee (PrepCom) sessions. Nevertheless, many of the most crucial issues remain unresolved. This is not unusual in multilateral negotiations, where the final outcome is often the result of last minute, high level political bargaining.

Canada's support for an independent and effective Court has been important to the evolution of the ICC negotiations to date. While Foreign Minister Axworthy is on record as supporting the ICC, continued strong Canadian leadership is not a given. Some of Canada's closest allies are among those states which want to create a weak Court by, for example, subordinating it to UN political organs, like the Security Council, or through restrictive and unnecessary requirements for state consent.

Background

Unlike the International Court of Justice in The Hague, which exists to hear cases between states, an International Criminal Court would try individuals for violations of international law.

The Court would consist of a Presidency, Trial and Appeals Chambers, and a Registry (i.e. secretariat). There would also be an independent organ of the Court, a Procuracy, responsible for the investigation of complaints, headed by a Prosecutor (with deputies and staff). Like the judges of the Court, the Prosecutor and deputies would be elected by an absolute majority of States parties to the Court, by secret ballot.

Since 1996, the Sixth Committee of the U.N. General Assembly has convened five sessions of the Preparatory Committee on the Establishment of an ICC (PrepCom) to negotiate a Draft Statute for the Court. The final PrepCom, scheduled for March 16 - April 3, 1998, will prepare a consolidated text for the Diplomatic Conference.

The question now is what kind of court will emerge from the Diplomatic Conference? Will the ICC have the authority and the independence to deliver justice and to punish the most heinous criminals? Or will the ICC be crippled by its dependence on approval by the Security Council and on cooperation by individual governments? Will this historic opportunity to deter the gravest international crimes be squandered on a court that is unable to fulfill the tasks for which it was created?

The following principles and mechanisms are essential to a fair and impartial Court:

A) Trigger Mechanism and the Role of the Prosecutor

The current Draft Statute has a restrictive 'trigger mechanism' (i.e. the means by which an investigation by the ICC is commenced) that limits the Prosecutor to initiating an investigation only when the Security Council refers a situation or a State Party that has accepted the jurisdiction of the Court files a complaint. Unlike the two Ad Hoc Tribunals, the Prosecutor will simply be an executor of the decisions of the Security Council or states. Since states and the Security Council may, for a variety of reasons, be reluctant to bring cases to the ICC, failure to broaden the complaint mechanism will restrict the Court's authority, significantly reduce the number of cases that come before it and allow alleged perpetrators to go free.

The ICC's "trigger mechanism" must be expanded to allow the Prosecutor to initiate an investigation based on his or her own findings, or on information obtained from any source, including individuals and NGOs. The contributions of victims and NGOs will be instrumental in bringing perpetrators to justice.

B) The Role of the Security Council

Although it is essential that the Security Council maintain its primary authority to determine threats to international peace and security, the exercise of the ICC's jurisdiction cannot be subject to a preliminary approval by this highly-politicized body. The Draft Statute currently prevents the Court from exercising jurisdiction in cases arising in situations being "dealt with" by the Council under its power to maintain international peace and security. Permanent Members could thereby protect potential defendants (including their own nationals) merely by placing a matter on the Council's agenda. This procedure would seriously undermine the Court's independence and credibility.

The like-minded oppose this part of the Draft statute. However, there may occasionally be instances when there is a legitimate case for the Security Council, in the interest of maintaining peace and security, preventing ICC action. A generally supported compromise would require that the Security Council be required to take an affirmative vote (all permanent members would have to concur) to prevent the ICC from exercising jurisdiction.

C) The Relationship of National Courts to the ICC (Complementarity)

The ICC is intended to be complementary to national criminal justice systems. The ICC is intended to act only in cases where such national trial procedures are unavailable or ineffective. This provision ensures that the ICC does not become a substitute for national courts which have the primary responsibility for bringing the accused to justice. A correct understanding of complementarity and its expression in the Statute is essential if the Court is to be more than a marginal institution.

The Draft Statute holds that a case is "inadmissible" where it is being or has been investigated or prosecuted by a state with jurisdiction, unless there is "inability" or "unwillingness" on the part of that state to "genuinely" carry out such an investigation or prosecution. This sets a high threshold for the Court's jurisdiction and makes it very difficult for the Court to determine admissibility. The Statute should also clarify that, while the relevant states may challenge admissibility, the Court will make the final decision regarding admissibility. No state should be able to subvert the Court by justifying decisions not to cooperate on the basis of a unilateral determination of inadmissibility.

D) Inherent Jurisdiction

The current Draft Statute only gives the Court inherent jurisdiction for genocide. For crimes against humanity and serious war crimes, the prosecutor's ability to launch an investigation will depend on whether a number of states (the state with custody over the accused, the state where the crime took place, and possibly, the state of the accused's nationality) have consented to the Court's jurisdiction over those particular crimes. These elaborate preconditions will result in the piecemeal application of justice and increase the possibilities for delay, obstruction, and selective justice.

To function effectively, the Court needs inherent jurisdiction over the core human rights crimes within its jurisdiction, and such jurisdiction ought to be conferred on the Court when the state becomes a party to the Statute. Concerns about state sovereignty will be sufficiently safeguarded by the principle of complementarity since the primary duty to prosecute criminals will still remain with the individual states.

E) Procedural Questions, Fair Trial and Rights of the Accused

The ICC must uphold the highest standards of justice. While the judges require clear guidelines on the rules of evidence and procedure, it is impractical and unnecessary to include all the details in the Statute. The Statute should contain the fundamental principles of due process governing arrest, pre-trial detention, the trial, the rights of the accused, evidence and protection of victims and witnesses.

F) Definition of War Crimes

The Court's statute should not treat crimes committed in internal conflicts and those committed in international conflicts unequally in the definition of war crimes. The statute of the Court should reflect the reality that contemporary armed conflicts are predominantly non-international. If the ICC is to have any relevance in the contemporary world it must be able to address the full breadth of international crimes committed in internal armed conflicts. We believe that the scope of the Court's jurisdiction over war crimes is critical to its impact and credibility.

The ICC treaty should not adopt language regarding the definition of prohibited weapons systems which weakens existing prohibitions on use of nuclear weapons.

G) Crimes of Sexual and Gender Violence

Women are commonly the targets and victims of egregious international crimes and have frequently been denied access to justice at both national and international levels. The conflicts in Rwanda and the former Yugoslavia are only the most recent examples of horrifying levels of violence against women, including acts of rape, sexual slavery, enforced prostitution and other forms of sexual assault. The ICC must be fully empowered to prosecute sexual and gender violence if it is to fulfil its mandate to end impunity for the most serious violations of international law. Toward this end, the ICC statute should explicitly recognize the court's jurisdiction over these crimes against women and adopt legal principles and procedures that would facilitate the prosecution of these crimes without prejudice to the accused.

H) Rights of Children

Children's rights and protection issues need to be emphasized. These concerns are raised with regard to issues such as the forced recruitment of children into armed forces, the age of criminal responsibility, and punishment and imprisonment of children.

I) Victims and Witnesses

Evidence from the International Criminal Tribunals for the Former Yugoslavia and Rwanda overwhelmingly indicate that witnesses face serious security, psychological, and medical concerns. Victims of gender-based crimes who testify may experience profound stigma and shame. The creation of a Witness Support and Protection Unit within the Procuracy is needed, to protect the physical and psychological well-being of witnesses - particularly victims - and their family members, before, during, and after trial proceedings.

Victims and their representatives have a right to reparations under international law in respect of serious violations such as those falling within the jurisdiction of the Court. The most efficient way for the international community to make effective the exercise of this right would be through the mechanism of the ICC. Consistent with emerging international legal norms, reparations must be understood, in a broad sense, to "include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition."

World Federalist Analysis

Creation of an International Criminal Court may very well be the most significant improvement to the UN's capacity to maintain international peace and security since the advent of peacekeeping.

In the aftermath of war, criminal prosecution of leading individuals can help defuse the animosities and mistrust among formerly warring communities. By individualizing guilt, entire groups are not held responsible for genocide or other humanitarian crimes, thus contributing to social and political healing and reconstruction.

Rather than respond to acts of genocide occasionally and after the fact, creation of a permanent International Criminal Court would allow the application of humanitarian law to become more reliable. And the existence of the Court would serve a preventive function by deterring other potential criminals.

Furthermore, the existence of an ICC will help erode the outdated notion that the world is little more than a collection of nation-states. It is an important step, conceptually and politically, from state-centered thinking to a framework in which the individual has broader rights and responsibilities under international law.

Recommended Action

We recommend two strategies for individuals and organizations supporting the creation of an ICC.

1) Write to Foreign Affairs Minister Axworthy. Canada and the like-minded must maintain their determination to create a Court which is an independent and effective (we recommend using the key buzzwords 'independent and effective' in your letters to government officials). It is far better to get the statute right, now, during this historic opportunity, even if some states do not immediately join the treaty creating the Court, than to seek a watered-down consensus on a judicial body which is unable to function effectively. Most importantly, urge that Mr. Axworthy personally lead Canada's delegation to the Rome ICC Treaty Conference. Letters should be addressed to:

Hon. Lloyd Axworthy
Minister for Foreign Affairs
Lester B. Pearson Building
125 Sussex Drive
Ottawa, Ont.
K1A 0G2

2) Communicate the importance of an ICC to others. Especially, raise awareness of the ICC through the media. Contact the editorial boards and columnists of newspapers about the importance of the ICC and Canada's position on this issue. Write letters to the editor or op-ed articles to express your organization's support for a strong Court. Write articles for NGO newsletters or other in-house organs. The greater the profile this issue takes on in the crucial next few months, the greater the likelihood that Canadian officials will work under strong instructions to achieve an effective ICC treaty this summer in Rome. Further information materials can be obtained from the Canadian Network for an International Criminal Court (207 - 145 Spruce St. Ottawa, K1R 6P1; tel: 613-232-0647). The international NGO Coalition for an International Criminal Court maintains a useful web site at: <http://www.igc.apc.org/icc>.

This paper was prepared by Fergus Watt at the WFC national office. Much of the material is drawn from an international Action Alert issued by Human Rights Watch, New York (http://www.hrw.org).