The International Criminal Court as a Means to Realize Universal Human Rights

Structure

1 Introduction

2 The Idea ofHuman Rights
2.1 Historical Evolution and Pioneers of the Concept „Human Rights“
2.2 Human Rights Today

3 Difficulties Regarding the Realization of Universal Human Rights
3.1 National Interests Opposing Human Rights
3.2 A Cosmopolitan Approach to Dissolve National Opposition

4 The International Criminal Court
4.1 History of the ICC
4.2 Structure and Principles

5 National Interest in Opposition to Participation in the ICC
5.1 Resentmentin Africa
5.2 Resentment in Asia
5.3 Resentment in America

6 Conclusion

Literature

1 Introduction

More than 10 years ago the International Criminal Court entered into force. It was designed to be a model of a global governing of human rights. Trying to set universal standards for thejurisdiction of human rights, it is the first time in human history, that serious human rights violations such as genocide, crimes against humanity, war crimes, and the crime of aggression can be judged in a court of law. The thesis will argue, that the ICC therefore presents a milestone on the realization of international human rights. However, the ICC has to face many obstacles, most prominently the opposition by several UN member states, who refuse to accede the Court. The thesis will illuminate this development with the help of some cosmopolitan approaches.

After this short introduction, the focus will be on the progress of universal human rights over the last centuries with the remarkable climax of the Universal Declaration of Human Rights in 1948, which also laid the roots for the later foundation of the ICC. In chapter 3 this thesis will broach the issue of the obstacles regarding the realization of human rights. As mentioned above, a major opposition still stems from the nation states, who are partly still stuck on a realist view of the international system. Out of fear, that they might lose sovereignty, they prefer to follow their national interest instead of putting universal human rights into practice. To explicate this behavior of nation states, I have consulted the article „In the national interest“, published by Allen Buchanan in 2005. He reflects on the observation that human rights are in practice in most of all cases incompatible with the national interest of a nation state. Although the majority of all states will commit themselves on paper to the noble goal ofhuman rights promotion, in reality their foreign policy will quite often display quite the opposite. As a reply, I will argue with the help of David Held, that a cosmoplitan answer to overcome these obstacles is possible by creating common institutions as a new layer of legal competence to which people can transfer public powers.

To illustrate these considerations I will then discuss the International Criminal Court, as an example of such a cosmopolitan institution. After a presentation of the Court in chapter 4, chapter 5 will however show, that many of Buchanan's arguments still prove to be true. Until today, the work of the ICC is restrained by the national opposition by several nation states. Referring to the motivations of major states why not to accede the ICC, I will terminatory reflect on the claims and the success of the ICC as an agent to realize universal human rights.

2 The Idea of Human Rights

On December 10th, 1948 the Universal Declaration of Human Rights was adopted by the UN General Assembly. Flanked by the two international Pacts, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, they are the first effort in the history of mankind to implement universal human rights under international law. For the modeling of these rights one hearkened back to various intellectual approaches, which were developed in different ages and diverse cultures. The next chapter is going to present a summary over the evolution of the “concept human rights”, followed by a description of what we understand today under the term of human rights.

2.1 Historical Evolution and Pioneers of the Concept „Human Rights“

The oldest written source of a compilation of various laws is the Code of Ur-Nammu. Composed in Sumerian language and dating back to ca. 2100 B.C., it is the first document declaring the equality of all citizens. (That times the term „citizen“ only comprised the free male population, thus neither women nor slaves.)

Also being testimonial of a long tradition, the world religions imply entitlements similar to human rights as well: Hinduism, the world’s oldest living religion, teaches values of the divineness of all human life, which therefore shall be respected and loved (Lauren 2011: 6f). According to the lessons of Buddhism every human being is entitled to the same rights and the same dignity. Further in early biblical testimonies one can find conceptions of human rights. The pre-condition for this is theological doctrine Imago Dei, which postulates that human beings are created in God's image and therefore have inherent value. The Ten Commandments, formulated as the direct speech of God to the people of Israel, the values life, matrimony and property are under protection.

In the ancient Athens there were first attempts to give a human-rights-alike constitution to a political community. Already from the beginning of the 6th century B.C. arbitrary adjudication was limited, further political participation was enabled (at least for all inhabitants with citizenship, i.e. slaves and women still excluded). The philosopher Plato believed in a universal truth and virtue. The idea of universalism, that human rights are universal, was derived from this. The means to realize this concept is a statutorily constituted community of citizens (polis) (Stiftung Weltethos). Conceptions concerning this could also be found in ancient Rome: The philosophy Stoicism, decisively influenced by Cicero, Seneca or Epikett, formulates the natural equality of all human beings due to their nature. Thus a law can be derived, which all humans are entitled to (Stiftung Weltethos). More than 1000 years later Thomas Aquinas stated that basic human needs such as self-preservation require fundamental human rights. Around the same time the Magna Charta was issued, a precursor of constitutional law.

During the age of Enlightenment the public implementation of the concept of human rights was promoted by pioneers such as Thomas Hobbes, John Locke, Jean-Jacques Rousseau and Immanuel Kant. Hobbes believed in the idea of positive law, i.e. the idea that rights come directly from the state and are protected by the state. An important difference to earlier philosophers is that Hobbes assumes that rights can also be taken away by the state, thus are not universal (Lauren 2011: 25ff.). Locke changed this positive law view by including the idea that the state’s law is derived from a constitution, the legal framework of the society, which itself again is based on natural law including a natural right to self­ preservation. Therefore, the power of the state was still limited by some basic inalienable human rights. Thus, Locke conceived human rights to be protecting the individual against the state (Stiftung Weltethos). Rousseau developed a social contract theory, that stated that all individuals in a society had entered into a contract. By means of this contract a civilized society is formed in exchange for the government giving them equality. Within this society each individual possesses equal rights to political participation (Stiftung Weltethos). Kant assumed that „the reason to pursue rights could be found in the duty to protect the intrinsic worth and dignity of each person in order that they never be treated as means, but always as ends in themselves.“ (Lauren 2011: 18). Furthermore, Kant introduced the idea of the categorical imperative, proposing that everyone should act in such a way that all would be well if everyone else acted like them. Each individual freedom should not impinge on the freedom of others.

All these new considerations about the relationship between the individual and the state also led the way to two major revolutions during the 18th century, in the United States

(1776) and in France (1789), who claimed a new form of legitimate rule. The Preamble of the United States Declaration of Independence famously proclaims "that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." (National Archives and Records Administration). The French Déclaration des droits de l'homme et du citoyen defines the individual and collective rights of all men as universal.

2.2 Human Rights Tod ay

From this foundation, the modem human rights arguments emerged over the later half of the twentieth century. Today human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." (Sepùlveda et al. 2004: 3). They may exist as natural rights or as legal rights, as will be shown later. Further, modern human rights fulfill basic features: 1) universality, i.e. human rights count for everyone any given time at every time and unconditionally. The universality of human rights is encompassed in the words of Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.” 2) Indivisibility, i.e. the different rights can only successfully exist in combination.

Thus ideally, human rights always are to be realized in their entity. Consequently, all human rights have equal status, and cannot be positioned in a hierarchical order. 3) égalité, i.e. equality before the law. Nobody is to be discriminated or privileged due to their sex, age, descent, race, language, faith, ethnicity, political attitudes, disability etc.

Especially in the aftermath of World War II, there was increased concern for the social and legal protection of human rights as fundamental freedoms. It was then, when the United Nations were founded, providing a comprehensive system of international law and practice for the protection of human rights. Since then, international human rights law has been characterized by a complex and joint system of conventions, treaties, organizations, and political bodies. The most important ones will be introduced in the following:

As already mentioned, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. Although originally the UDHR was a non-binding law, it has an immense moral weight. Many of its assignments also entered national constitutions. Furthermore, by now it is widely considered to have acquired the fore of international customary law, making it justiciable by national and other judiciaries. The UDHR commits its members to promote human, civil, economic and social rights. 18 years later, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the United Nations. This time it contained binding rights on all states that have signed this treaty, creating human-rights law. Since then, numerous other treaties have been launched at the international level, e.g. the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Wo men, the United Nations Convention Against Torture, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities or the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

In 2005, the United Nations Human Rights Council was created and equipped with the mandate to investigate violations of human rights. For this reason, along with given human rights violations, the Human Rights Council is able to request the United Nations Security Council to take actions, involving direct actions, sanctions or referring cases to the International Criminal Court (United Nations Office of the High Commissioner for Human rights).

3 Difficulties Regarding the Realization of Universal Human Rights

Although in theory the idea of universal human rights may sound a great advancement, in practice it has to face a strong opposition. One of the major obstacles towards a worldwide realization ofhuman rights is the resistance by many nation states. The following chapter will give two explanations for this, as well as an cosmopolitan approach to overcome this obstacle.

3.1 National Interests Opposing Human Rights

The American professor of public policy and philosophy Allen Buchanan points out in his article „In the national interest“ that in spite of all these theoretically auspicious ideas, the idea of human rights is in practice in most of all cases incompatible with the national interest of a nation state. Although the majority of all states will commit themselves on paper to the noble goal of human rights promotion, in reality their foreign policy will quite often display quite the opposite.

Buchanan calls this phenomenon the Permissible Exclusivity Thesis. He summarizes it as the following: „It is always permissible for a state's foreign policy to be determined exclusively by the national interest. If a state chooses, it may subordinate all other values to the pursuit of the national interest in any case.“ (Buchanan 2005: 111) In other words, in accordance with the Permissible Exclusivity Thesis it is permissible for nation states to violate basic human rights if those rights stand in the way of achieving national goals or realize their national interests. In one extreme fictitious example this could be e.g. that it would allow wars of aggression against harmless and weak countries if, for example, the national interest required expropriating their oil just for the pursuit of national wealth. According to the author the Permissible Exclusivity Thesis can be explained with the help of two justifications, first the Fiduciary Realist Justification and second the Instrumental Justification.

The Fiduciary Realist Justification is based on a the background of a realist view of the international system, whose basic characteristics are anarchy, a constant struggle for survival between states, self-help system, military competition, and security can only be achieved through military dominance. The core argument of the Fiduciary Realist Justification is that it sees the moral obligation of state leaders to act in order to maximize the national interest. The national interest is here equivalent with well-being of the people of the respective state. The state leader thus acts as the custodian of the whole state and administrates responsibly the welfare of the nation. Therefore he/she is obliged to put the national interest above all other values. Human rights don't play any role in this concept and are neglected by the state leaders who follow this principle. Hence it is unlikely that states who are ruled under this premise will advocate the promotion of human rights (Buchanan 2005: 113ff).

The second explication is the Instrumental Justification, which also “holds that under the conditions prevailing in the international relations the best outcomes for everyone (or at least for most of humanity) will occur if each state aims exclusively at maximizing the national interest in foreign policy” (Buchanan 2005:118). Thus this logic relies on the principle of the invisible hand, a metaphor describing the self-regulating behavior of the international system (or rather in its original: marketplaces). Therefore the advocates of the Instrumental Justification believe that if everyone just cares for oneself and one's own welfare, the best outcome will be reached. According to this logic it is even dangerous to interfere with other state's business, as Buchanan illustrates by quoting Morgenthau: “any attempt to shape foreign policy by moral values will lead to moral imperialism and ultimately to fanatical, highly destructive conflicts among states.” (quote after Morgenthau, in: Buchanan 2005: 119) State leaders who follow this logic will probably at least acknowledge the value of human rights. However, they are unwilling or even afraid to interfere with other state's internal matters. Hence they won't participate decisively and committedly to the goal of a worldwide promotion and realization ofhuman rights.

3.2 A Cosmopolitan Approach to Dissolve National Opposition

As I showed in the chapter above, many nation states are indeed aware of breaches of international human rights - whether they occur within the borders of their own or a foreign state. Nevertheless, for the reasons explained above, many state leaders decide to put up the shutters and only defend the position of their own nation and country.

This behavior is opposed to the idea of cosmopolitanism. According to cosmopolitanism, all human beings - independent of their religious, ethnic, gender or national background - belong to the one single human community, which shares a common morality. By virtue of the cosmopolitan view, human well-being (and therefore human rights) should not be determined by boundaries of nation states (Held 2010: 141). Thus, the national borders should not be a limit ofhuman rights, as well of responsibility.

Cosmopolitanism shares some aspects of universalism - namely the notion of human rights that must be protected globally. It builds on the basic principles of a globally equal dignity and a globally equal respect amongst all human.

Held states that the globalization has not only brought a much higher economical interconnectedness, but also growing aspirations for international law and justice (Held 2010: 119). That is, because global phenomenons like terrorism or climate change touch every human being in the end: “We no longer live, if we ever did, in a world of discrete national communities. Instead, we live in a world of overlapping communities of fate, where the trajectories of countries are heavily enmeshed with each other.” (Held 2010: 118f). To address these common problems, Held demands the building of international institutions as a guardian of social justice in the face of the ongoing economic globalization (Held 2010: 136).

For this purpose, Held imagines international institutions, which are capable to restrict national sovereignty and rule autonomously international law (Held 2010: 124). International institutions will make state boundaries decrepit, as no longer the interest of a single nation state matters, but the interest of all man kind. Hence, politicians and decision-makers will no longer be responsible for their own limited territory with its citizens clearly set out. Instead, new forms of accountability will appear (Held 2010: 125). Thus, the core of the fiduciary- argument still holds valid, but with an important change: Politicians are still morally obliged to act in order to maximize the interest and the well-being of the people (compare: Buchanan 2005: 113ff). But in a cosmopolitan world system, the politicians don't just care for their nation state citizens, but now for the concerns of all human kind: “[...] the state is no longer the only layer of legal competence to which people have transferred public powers” (Held 2010: 125).

In the following chapter I will examine in how far these claims have been realized so far or whether they remain a remote utopia until today. I will concentrate on the institution of the International Criminal Court, as one of the major international institutions advocating equal human rights worldwide. The ICC affirms in its foundational treaty the importance of universal principles and rights. But does it also show success in practice?

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