The International Criminal Court and National Sovereignty

Kristen Boon

Litigation Associate at Debevoise & Plimpton, New York

The International Criminal Court ("ICC") Statute, adopted in July 1998, is one of the most ambitious international legal endeavours to date. The ICC Statute represents the general consensus that some crimes are so egregious as to warrant individual criminal liability and sanction by the international community as a whole. The ICC Statute has also criminalized a range of new acts, such as Forced Pregnancy, Apartheid and Enforced Disappearance, and thus signals a considerable expansion of existing international criminal law.[1] Unlike the ad hoc International Criminal Tribunals for Rwanda and Yugoslavia which have limited territorial and jurisdictional mandates, the ICC will be a permanent institution with jurisdiction over the three core crimes of war crimes, crimes against humanity and genocide.[2] Sixty ratifications are required before the ICC can be established, and the Coalition for an International Criminal Court (a consortium of non-governmental organizations that are actively assisting countries in the ratification process) predicts that this number will be achieved by 2002. The ICC is therefore on the eve of creation, and promises to become the most significant institution for the development, interpretation and enforcement of international criminal law.

Throughout the negotiations and policy debates, the most controversial aspect of the ICC has been its potential effects on national sovereignty. The ICC has the capacity to assess and override certain aspects of national criminal law and procedure, as well as to prosecute acts committed by or under the control of top military and civilian leaders. Criminal law and military and foreign policy have traditionally been attributes of the nation state - essential aspects of a country’s sovereignty and self-determination. The three areas in which the ICC may have the greatest impact on national sovereignty are: 1) the exercise of ICC jurisdiction over citizens of non-party States; (2) the effect of the ICC’s complementary jurisdiction on national laws; and (3) the non-recongtion of most national immunities for military and civilian leaders.

U.S. / EU Positions on the National Sovereignty Debate

In 1998, the United States was one of seven countries to vote against the adoption of the ICC Statute.[3] One of the central reasons for its opposition is the ICC’s potential to undercut the U.S.’s foreign and military activities. This concern converges with a deep-seated suspicion against external checks on legislative or executive independence. Debates on the ICC have been vehement, and the ICC has generated so much opposition that a Republican Congressman introduced a bill entitled the "American Servicemen’s Protection Act" which would deny U.S. aid to any nation that cooperates with the ICC, in order to prevent any possibility of a U.S. citizen coming before the ICC.

Most European countries appear far less concerned with the ICC’s potential incursions into national sovereignty. Perhaps this is due to the acceptance of trans-national bodies such as the European Union and the European Court of Human Rights, or to widespread support for such an institution due to historical realities. In any event, Germany, Austria and the Netherlands, amongst several others, took the lead in drafting provisions throughout the negotiations in order to secure a strong ICC, and all voted in favour of the final Statute. Eight of the European Union’s fifteen members have already ratified the ICC Statute. In a recent statement supporting the ICC, the EU has indicated that the rest are in the process of ratifying the Statute.[4]

ICC Jurisdiction and State Consent

Under Article 13 of the ICC Statute, the ICC may obtain jurisdiction over a case in one of three ways. First, when a State ratifies the ICC Statute, it recognizes the ICC’s automatic jurisdiction over the three core crimes: war crimes, crimes against humanity and genocide. In order for the ICC to exercise this jurisdiction, the ratifying State must be the territorial State (State where the act occurred) or the State of nationality (State of the accused’s nationality), pursuant to Article 12(2). If a State opts not to ratify the ICC Statute, it may nonetheless recognize the ICC’s jurisdiction on an ad hoc basis, allowing the ICC to take jurisdiction over a particular situation.[5] Finally, under Article 13(b), the United Nations Security Council may refer situations to the ICC directly. In each of these situations, the ICC operates through State consent in that its jurisdiction becomes effective through the express agreement of that State (through ratification or ad hoc referral) or through its implied consent, in that countries that belong to the United Nations recognize the Security Council’s powers.

In one limited situation the ICC may obtain jurisdiction without the consent of the State of nationality. Since the ICC Statute requires the agreement of either the territorial State or the State of nationality, the territorial State may refer the case to the ICC despite the fact that the national State is not a party to the ICC. For example, assume that the U.S. is not a party to the ICC Statute, but Iraq is. If a U.S. citizen commits a war crime, a crime against humanity or genocide in Iraq (the territorial State), Iraq may refer the case to the Court even though the U.S. has not consented to the ICC’s jurisdiction. Given the number of American soldiers and peacekeepers abroad, this avenue to ICC jurisdiction has caused a great uproar in the U.S.

This dispute is based on one issue. Must States consent to the exercise of international jurisdiction? The simple answer is No. While it is clear that the consent of all States would give the ICC greater legitimacy, consent is not a precondition to the exercise of international criminal jurisdiction.[6] Consider the analogy at the national level. When individuals commit a crime in a foreign country, they may be prosecuted by the foreign State under the foreign State’s own laws. Thus if a German commits a crime in France, France may prosecute the German under French law. The ICC operates on the same principle and may prosecute individuals for acts committed in foreign lands through the delegation of the territorial State’s jurisdiction. The ICC may affect which court ultimately hears the case, but it does not create a new restraint on a nation’s sovereignty because territorial States have always been able to try individuals for crimes committed on their territory, regardless of whether or not the State of nationality consents.[7]

Complementary Jurisdiction

Even where the ICC has the power to exercise its jurisdiction based on one of the three provisions described above, it cannot do so until it has determined that a case is admissible. The admissibility provisions are found in Article 17 of the ICC Statute which states that the ICC can only take jurisdiction over a case where national courts are either unwilling or unable to act. As such, the ICC complements national judicial systems, it does not replace them. The ICC is not a first court, and an important assumption underlying the entire structure of the ICC is that national courts and institutions should act first. This threshold even applies to the scenario described above where nationals of one State commit a crime abroad. Thus, where Iraq (the territorial State) refers a case involving a U.S. citizen to the ICC, the complementarity provision allows the ICC to defer to prosecutions and investigations in U.S. courts. The U.S. can effectively block ICC jurisdiction over a case by prosecuting the act at the domestic level.

Before the ICC takes jurisdiction over a case, it will be required to examine whether national courts are unwilling or unable to act. This inquiry essentially asks whether local remedies have been effective. Since the ICC retains the power to determine whether cases are admissible, which is based on its assessment of the effectiveness of national criminal law and procedures, the ICC does retain the power to examine the effectiveness of the State’s internal criminal prosecution. Although this power appears to infringe upon national sovereignty, such provisions are common in international courts. For example, most international tribunals will not take jurisdiction over a case while a proceeding is ongoing in a national court,[8] but where the State has not provided effective judicial assistance, international courts may decide to consider the case.[9] The ICC’s ability to scrutinize national proceedings is essentially the same as that afforded to comparable institutions. The effect of the ICC’s complementarity regime on national sovereignty is thus not a great departure from the existing international system. In order to prevent the ICC from taking jurisdiction, States must simply provide effective judicial redress at the domestic level.

National Amnesties and Immunities

Recent attempts to indict and prosecute heads of State such as Augusto Pinochet, Slobodan Milosovic and Ariel Sharon are bringing the full potential of an enforceable international criminal regime into focus. It is likely that the ICC will further this development, since the ICC Statute applies equally to heads of State, members of government, elected representatives and government officials. [10] Article 27 also provides that the ICC will not be barred from exercising its jurisdiction due to immunities or special procedural rules which apply under national or international law. This provision is consistent with recent developments in international criminal law, which limit the scope of head of state immunities in recognizing that certain acts, such as torture, forced disappearances and other mass atrocities, are outside of the scope of the immunity afforded to leaders.

Despite the clarity of Article 27, a number of provisions dilute the ICC’s ability to try heads of State. Article 98 provides that the ICC cannot proceed with the surrender of an individual held by a third party State if it would be inconsistent with the State’s international law obligations regarding diplomatic immunity, unless the third State waives the immunity. Furthermore, in negotiations subsequent to the Rome Conference in 1998, a number of States have made a considerable effort to further restrict the ICC’s ability to override national immunities. Two documents currently under negotiation relate to privileges and immunities: (1) the Relationship Agreement between the United Nations and the ICC; and (2) an agreement on Privileges and Immunities. Both have several draft provisions which affect the ICC’s jurisdiction over state reprentatives who enjoy diplomatic immunities, and if accepted, will limit the ability of the ICC to override these.[11] Although the ICC will be most effective if it can act without being constrained by various national immunities, current negotiations suggest that there will be much more stringent constraints on the ICC’s power to investigate and prospecute official state representatives than envisioned under the ICC Statute itself.

Conclusion

The ICC will have the capacity to directly assess or indirectly pressure countries to investigate and prosecute acts which constitute violations of international criminal law. The ICC will also have the capacity to enforce its jurisdiction by requiring States party to the Statute to provide domestic redress for those wrongs, or else it can step in and prosecute the crimes itself. Despite the ICC’s apparent incursions into areas usually reserved to the State however, it is clear that the ICC Statute is usually consistent with contemporary international law and practice. Where it departs from such practice, it has done so on the basis of representative and open international negotiations where all States had the opportunity to contribute to the development of the Statute.

There are limits to the power of the nation, and when States condone or ignore the perpetration of the most egregious atrocities, or shield individuals from being tried for those acts, there is a growing conviction that the world should respond. Criminal law is rooted in very fundamental ideas about how we govern ourselves, and the ICC simply builds on national experience and international conventions, in order to articulate how these ideas should operate at the international level.

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