The International Criminal Court: An Introduction

By Andrew Novak

This book is about the International Criminal Court (ICC), a new and highly distinctive criminal justice institution with the ability to prosecute the highest-level government officials, including heads of state, even in countries that have not accepted its jurisdiction. The book explores the historical development of international criminal law and the formal legal structure created by the Rome Statute, against the background of the Court’s search for objectivity in a political global environment. The book reviews the operations of the Court in practice and the Court’s position in the power politics of the international system. It discusses and clarifies all stages of an international criminal proceeding from the opening of the investigation to sentencing, reparations, and final appeals in the context of its restorative justice mission. Making appropriate comparisons and contrasts between the international criminal justice system and domestic and national systems, the book fills a gap in international criminal justice study.

• Language: English
• Publisher: Springer
• Release date: Mar 11, 2015
• ISBN: 9783319158327

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© Springer International Publishing Switzerland 2015

Andrew NovakThe International Criminal Court10.1007/978-3-319-15832-7_1

1. Introduction

Andrew Novak¹  

(1)

Criminology, Law, and Society, George Mason University, Fairfax, VA, USA

Andrew Novak

Email: [e-mail]

Abstract

The International Criminal Court is a highly distinctive criminal justice institution, one with the capacity to prosecute the highest level government officials, including heads of state, even in countries that have not accepted the jurisdiction of the Court. The introduction will provide a brief overview of the International Criminal Court, including the development of international criminal law, the operations of the Court in practice, and the Court’s position in the power politics of the international system.

Keywords

ComplementarityGravityInternational Criminal CourtInternational Law CommissionRestorative justiceRome StatuteState partySecurity CouncilUnited Nations Charter

1.1 Prosecuting International Crime

The International Criminal Court is an ambitious and relatively new experiment in international criminal justice. At the center of this experiment is the person of the Prosecutor , currently Fatou Bensouda of The Gambia . The Prosecutor is independent of direct political forces, with broad discretion to choose cases. But her power is not unlimited: she needs cooperation of states to carry out investigations, apprehend suspects, and enforce judgments. Every decision she makes must be reviewed by the Court’s judges. Not even the United Nations (UN) Security Council , created under the UN Charter, the treaty that established the UN system in 1945, can permanently stop or prevent an investigation or prosecution. Although the International Criminal Court has, in theory, broad jurisdiction to prosecute serious crimes such as genocide and war crimes , in practice the governing statute of the Court, known as the Rome Statute after the location of the diplomatic conference where it was drafted, places some carefully-negotiated limits on the Court’s jurisdiction. In general, the following principles govern prosecutions, which include personal, subject matter, and temporal limitations:

The Court must have personal jurisdiction over the defendant. This means that the defendant must be either a national of a state that has consented to the Rome Statute or be alleged to have committed crimes within the territory of that state. In cases where the United Nations Security Council refers a non-party to the Prosecutor , the defendant must be either a national of the referred state or be alleged to have committed crimes within the territory of the referred state. Personal jurisdiction is a matter of state consent, except for the comparatively rare situation in which the Security Council refers a case to the Court in the interests of international peace and security.

Domestic courts must be inactive, unwilling, or unable to investigate and prosecute the alleged crimes. This is the principle of complementarity : the Court’s jurisdiction is intended to complement, rather than supplant, national legal systems. The Court only fills in the gaps of domestic legal systems. As a result, complementarity significantly reduces the Court’s ability to exercise jurisdiction. The types of domestic proceedings that are acceptable to the Court are not yet completely clear. Certainly, a state’s investigation and prosecution of a suspected perpetrator would be sufficient for the Court, even if the perpetrator were ultimately not convicted, so long as the proceeding was genuine. The Court would also probably respect the outcome of a truth and reconciliation commission. On the other hand, a blanket amnesty for human rights violators in order to prevent prosecutions, even as part of a peace agreement, would likely be insufficient (Bishop 2013: 392).

The alleged crimes must be of sufficient gravity and must fall within the Court’s subject matter jurisdiction. The Court may prosecute four crimes under the Rome Statute : war crimes , crimes against humanity , genocide , and aggression . The crimes of genocide and war crimes are largely defined by treaties, while the decisions of prior international criminal tribunals have given content to the definition of crimes against humanity. Aggression, defined as the unlawful use of military force, is the most political of the four core crimes, as well as the most likely to implicate high-level military or civilian leaders.

The crimes must have occurred subsequently to July 1, 2002, the date that the Rome Statute entered into force, or the date on which a state party accepted the Court’s jurisdiction (or the date of referral by the Security Council ), whichever is later. A new state party is permitted to backdate its acceptance of jurisdiction to an earlier date, but not to before July 1, 2002 (Wills 2014: 409).

1.2 Creating a Truly International Tribunal

Criminal law is not universal, and there is no international penal code. Domestic criminal laws, procedures, and punishments vary enormously across the world, reflective of wide cultural, linguistic, religious, and philosophical diversity. Nonetheless, the nations of the world have set some minimal ground rules that encompass the worst crimes, including torture, slavery, war crimes , and genocide . How should an international tribunal operate? As Boas (2007: 286–287) explains, international criminal tribunals have historically used an adversarial model, as in the common law world, but with significant inquisitorial components drawn from the civil law tradition of continental Europe. International criminal justice is moving beyond this dichotomy, however, developing its own traditions of due process and expeditious proceedings in the unique international environment.

The Nuremberg trials to prosecute Nazi leadership after World War II and the Holocaust helped overcome theoretical objections to an international criminal court on the basis of national sovereignty. However, practical realities to establishing a continuing tribunal proved insurmountable in the postwar period. The Genocide Convention of 1948 makes reference to an international penal tribunal, later reconfirmed in a UN General Assembly resolution that invited the newly-created UN International Law Commission (ILC ) to study the possibility of establishing a permanent tribunal. In 1950, the ILC determined that the establishment of a permanent court was desirable and feasible, and over the next several years the ILC and representatives of member states worked to draft an international criminal code. The early ILC reports and the draft code of offenses were never implemented, falling dormant during the Cold War. Rivalries between East and West made consensus impossible. Nonetheless, the same ideas first presented in the decade after the Nuremberg trials reemerged in the 1990s and many became reality (Sadat 2000: 36–37).

In 1944, as World War II still raged, Harvard Professor Sheldon Glueck called for the creation of an international criminal court to prosecute crimes committed between the officials of two states, perhaps by applying a new international penal code. Glueck believed that certain crimes were contrary to the law of civilized nations, and therefore did not necessarily become lawful merely because they were permitted under domestic law. He also dismissed the notion that heads of state or those acting in official capacity or pursuant to superior orders could escape prosecution for war crimes (Glueck 1944: 91–95, 121, 133, 140). In 1950, Romanian jurist Vespasian Pella, one of the architects of the Genocide Convention , advocated the creation of an international criminal court as a follow-up to the Nuremberg and Tokyo tribunals. Pella considered alternatives for the appointment of judges, the nature of proceedings, and the execution of sentences, arguing that in many cases international criminal law can achieve nothing unless there [is] an international court to apply it. States would be reluctant to prosecute their own, he believed, especially when those in power—those with the greatest culpability—were the ones responsible for the crimes (Pella 1950: 65–68).

Nuremberg was the first international criminal tribunal, but not the last, and the experiment of international criminal justice was further developed and refined after the devastating ethnic cleansing campaigns of the former Yugoslavia and the genocide in Rwanda during the 1990s. Establishing an international criminal tribunal is a sharing process, and the International Criminal Court has built and improved upon the legal doctrines and practical realities of predecessor tribunals. The Rome Statute is more explicitly protective of a defendant’s rights than the Yugoslavia and Rwanda tribunals were, through, for instance, spelling out the fair trial rights of a defendant and granting a wrongly arrested defendant an enforceable right to compensation (Sluiter 2009: 461–462). At the same time, the Rome Statute itself is still living; it includes an amendment process, and states parties routinely meet to address and resolve potential shortcomings.

1.3 The Restorative Justice Movement

Students of criminal justice have seen in the domestic context that crime is not simply a matter of law-breaking; crime also causes injury to a victim . Although the rehabilitation model of criminal justice has dominated the field of criminology over the past 200 years, rehabilitation of an offender cannot erase all harm to a victim , his or her family, and the wider community. In recent years, a new movement has emerged, first at a grassroots level and then taken up by academics, which challenged prevailing assumptions that punishment for an offender is sufficient, or even necessary, to restore justice after a criminal act. The restorative justice movement aims to temper the criminal justice system’s overwhelming focus on the offender by instead focusing on the harm caused to the victim . By viewing crime as a conflict between victim and offender, a restorative approach allows both parties to be involved in the justice process, often resulting in constructive dialogue, apology, and an alternative to incarceration. Criminological evidence suggests that taking a restorative approach reduces recidivism rates, but with significant variation based on types of crime and social context (Wenzel et al. 2008: 376–77; Van Ness et al. 2015: 3–4).

The International Criminal Court’s structure and practice is influenced by the restorative justice movement, emphasizing reparation of the harm caused by mass atrocity, addressing the material and human consequences of violence, and aiming at appropriate restoration of victims, their families, and their communities. In the Western world, across both common law and civil law jurisdictions, restorative efforts have included victim -offender mediation and family group conferences for juvenile delinquency, to name two common forms. Earlier international criminal tribunals had little to no role for the victims of mass violence; the tribunals were arguably distant, foreign institutions that lacked local legitimacy and perspective. Beyond the divide between adversarial and inquisitorial justice processes, the restorative justice movement aims at a third model, a participatory one, in which victims, perpetrators, and other stakeholders are permitted to talk openly in constructive dialogue (Hoyle 2010: 6–8). Certainly, restorative justice has its limits; one may question, for instance, the validity of its pretentions to be truly universal or inherently a net positive. One may also challenge whether it succeeds in placing the victim at the center of criminal justice instead of the offender and giving voice to women and the marginalized (Cunneen 2010: 104–05, 136). Nonetheless, there is no question that the restorative justice movement has impacted international criminal justice after the bitter conflicts of the past 25 years, and the Rome Statute of the International Criminal Court is no