The International Criminal Court. A third arm of the Global North?
The relationship between the International Criminal Court and the Security Council
Table of Contents
WHAT IS THE ICC?
STRUCTURE OF THE ICC
JURISDICTION OF THE ICC
FUNDING OF THE ICC
THE RELATIONSHIP BETWEEN THE ICC AND THE SECURITY COUNCIL
THE WORK OF THE ICC IN LIBYA AND SUDAN
Where and why does the ICC intervene?
Reforming the ICC
Abstract: All those questions shall be answered during the course of this essay. It is my duty to give voice to the injustices of the world exerted by those who claim to be just, regardless of their authoritative power. My thesis is, there is a strong correlation between the work of the ICC and its special interest in the “dark continent” Africa, and the permanent member of the Security Council. In this paper I shall thus discuss the history of the ICC, the structure and funding of the ICC, jurisdiction of the ICC, and the relationship between the ICC and the Security Council. Further I will discuss whether there is a possible influential relationship between the ICC and global political economy. Moreover, a closer investigation into the work of the ICC, in the cases of Sudan and Libya, will follow and how it might relate to global political economy. Lastly, this paper will discuss some reforms that would enhance the ICC and highlight weaknesses of the ICC. In this paper there will be a special focus on Articles 13 and 16 of the Rome Statute and how they could be used as tools by global hegemons to control the ICC.
Keywords: International Criminal Court, Africa, International Law, Dark Continent, Imperialism, Global North
“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished”
- Kofi Annan
“We are at a point in our work when we can no longer ignore empires and the imperial context in our studies”
- Edward W. Said
The two quotes above illustrate what I intend to discuss in the following paper. Kofi Annan1, the seventh Secretary-General of the United Nations, highlighted in many of his speeches the obligations the United Nations (UN) owes the international community. The questions however are: to what extent has the UN, especially the Security Council (SC), actually been fulfilling its obligations towards the international community? Does the UN and its bodies, namely the Security Council, realize and acknowledge the differences in the power dynamics between the global north and the global south? Is the Security Council operating though the International Criminal Court (ICC) to perpetuate global inequality in order to secure the interests of the west? Is the ICC working for the enhancement of international justice or is it security for the SC members?
All those questions shall be answered during the course of this essay. It is my duty to give voice to the injustices of the world exerted by those who claim to be just, regardless of their authoritative power. My thesis is, there is a strong correlation between the work of the ICC and its special interest in the “dark continent” Africa, and the permanent member of the Security Council. In this paper I shall thus discuss the history of the ICC, the structure and funding of the ICC, jurisdiction of the ICC, and the relationship between the ICC and the Security Council. Further I will discuss whether there is a possible influential relationship between the ICC and global political economy. Moreover, a closer investigation into the work of the ICC, in the cases of Sudan and Libya, will follow and how it might relate to global political economy. Lastly, this paper will discuss some reforms that would enhance the ICC and highlight weaknesses of the ICC. In this paper there will be a special focus on Articles 13 and 16 of the Rome Statute and how they could be used as tools by global hegemons to control the ICC.
WHAT IS THE ICC?
The negotiators of the ICC statute created an institution almost breathtaking in its complexity and organizational structure. The 128-article Statute is divided into thirteen Parts, each addressing some feature of the Court’s establishment, jurisdiction or operation.2 The Statute is supplemented by important ancillary documents negotiated following the Rome Conference (but prior to the Statute’s entry into force), including, importantly, the Elements of Crimes, the Court’s Rules of Procedure and Evidence, a relationship agreement between the Court and the United Nations, an agreement on the privileges and immunities of the Court and the rules of procedure for the Court’s Assembly of States Parties (ASP) that would ultimately provide the Court’s management and oversight. The drafting of these ancillary documents was taken up by a Preparatory Commission composed of representatives of member states, which had signed the Final Act of the Rome Diplomatic Conference, and other States, which were invited to participate in the Rome Conference.3
Like the Preparatory Committee that had prepared the draft Statute taken up in Rome, the Preparatory Commission was composed of State delegates, many of whom had represented their governments during the Preparatory Committee meetings and the Diplomatic Conference. This facilitated the work of preparing the Statute’s entry into force. The Statute attained the requisite ratifications needed for entry into force with the deposit of eleven ratifications in April, 2002, bringing the total number of States Parties to sixty-six4. On July 1, 2002, the Rome Statute entered into force.
STRUCTURE OF THE ICC
The Court’s organizational structure is much more complex than predecessor international tribunals. The four organs of the Court are the Presidency, the Judiciary (composed of three divisions: Appeals, Trial, and Pre-Trial Divisions), the Office of the Prosecutor and the Registry. In addition, the Assembly of States Parties established by Part 11 of the Statute oversees the operations of the Court (including its budget) and the Trust Fund for Victims, established by a decision of the Assembly of States Parties under Article 79. The Trust Fund administers funds and other forms of assistance for the benefit of victims of crimes within the jurisdiction of the Court. It advocates for victims and mobilizes individuals, institutions with resources and the goodwill of those in power for the benefit of victims and their communities. As of this writing, the Court’s annual budget is just short of 122 million Euros, 10 million of which are allocated to the Judiciary, 33 million to the Office of the Prosecutor and 66 million to the Registry, and the staff number in the several hundred.
The Court has eighteen judges, nominated and elected by secret ballot by the Assembly of States Parties. Each judge must be a national of an ICC State Party and be a person of “high moral character, impartiality and integrity” who possess the qualifications required in their respective States for appointment to the highest judicial office of that State. In choosing, Article 36 of the Statute requires the Assembly to “take into account” the need for gender balance, equitable geographical representation, and the representation of the principal legal systems of the world. Each judge serves one, non-renewable nine-year term, and at least nine of the judges must have established competence and experience in criminal law and procedure; five must have competence and experience in relevant areas of international law. The judges organize themselves into Divisions upon their election, and elect the members of the Presidency, who serve for a term of three years. Five judges sit as members of the Appeals Chamber, which decides upon a Presiding Judge for each appeal. Three judges sit in each Trial Chamber and Pre- Trial Chamber, although a single judge may carry out the functions of the Pre-Trial Chamber if the Statute so provides. The Pre-Trial Chamber oversees the initiation of a case until confirmation of the charges against the accused, after which time the accused is committed to a Trial Chamber for trial.5
JURISDICTION OF THE ICC
In terms of jurisdiction ratione temporis, pursuant to Article 11(1), the Court only has jurisdiction with respect to crimes committed after the entry into force of the Rome Statute. Additionally, with respect to States ratifying the Statute after July 1, 2002, the Court only has jurisdiction with respect to crimes committed after the entry into force of the Statute for that State, unless that State decides otherwise.
The ICC has jurisdiction in the following cases: 1) crimes have been committed by a citizen of a member state, i.e. of a state that has ratified the Statute6. 2) The crimes have been committed on the territory of a member state7 (which means that the Court may, under certain circumstances, be able to exercise jurisdiction over the nationals of a non-state party). 3) The Security Council refers a situation to the ICC (in such cases, the Court’s jurisdiction is truly universal, meaning that it is not necessary for the alleged perpetrator of the crime to be citizen of a state party or for the crime to have been committed on the territory of a state party)8. 4) A state that is not party to the Statute (or was not party at the time the alleged crimes were committed) makes an ad hoc declaration for the Court to have jurisdiction “with respect to the crimes in question”9. Lastly 5) One of the key features of the International Criminal Court is that it is complementary to national courts10. This means that the Court will only investigate and prosecute cases when national authorities are unable or unwilling to do so, in accordance with Article 17.
FUNDING OF THE ICC
According to Article 113 of the Rome Statute, which discusses the financing regulations of the ICC “Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties”11. This process is governed by the Finance rules and regulations, as adopted by the ASP at its first Session.
The Court, under the coordination of the Registrar, produces a draft budget. The draft budget is considered and commented upon by the Committee on Budget and Finance (CBF), which meets twice a year, once before the meeting of the Assembly of States Parties (ASP) to consider the draft budget and once to consider other financial matters. The ASP then considers the budget and the recommendations of the CBF and adopts the final budget12. The States Parties to the Rome Statute, i.e. the members of the Assembly of States Parties share the costs of the ICC budget. How much each State Party pays is decided according to a system developed by the United Nations, whereby the contribution percentage per State Party is calculated according to their financial situation. It is of utmost importance for the financial stability of the Court that States Parties pay their contributions in full and on time, i.e. on 1 January of each financial year.13
THE RELATIONSHIP BETWEEN THE ICC AND THE SECURITY COUNCIL
Article 13(b) under the statute of Rome states: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;”14 and therewith, in other words, gives the Security Council jurisdiction over territories that may have signed but not ratified the Statute and are therewith not within the jurisdiction of the ICC.
Article 16 of the Statute which discusses the case in which a deferral of investigation or prosecution is permitted “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions”.15
Before starting with the history of the creation of the ICC I need to first define what I mean by “imperialism”. I chose a couple of the scholarly Marxist definitions of imperialism, because they pave the way to the understanding of this paper. Imperialism according to Karl Kautsky “Is a product of highly developed industrial capitalism. It consists of the urge of every industrial capitalist nation to subjugate to itself and to annex an always larger agrarian territory, regardless of which nations inhabit it.”16 The second definition is by Rudolf Hilferdine and states that imperialism “It [capital] seeks to overcome the restriction of productivity resulting from the contraction of the economic territory, not by conversion to free trade, but by expanding its own economic territory and promoting the export of capital.”17
1 Mr. Annan joined the UN system in 1962 as an administrative and budget officer with the World Health Organization in Geneva. Immediately before becoming Secretary-General, he was Under-Secretary-General for Peacekeeping. See more http://www.un.org/sg/formersg/annan.shtml
2 Rome Statute of the International Criminal Court, U.N. Doc. A/ CONF.183/9 (July 17, 1998).
3 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court on 17 July 1998, Annex I, Resolution F, U.N. Doc. A/CONF.183/10 (1998). See also Philippe Kirsch, ‘The Work of the Preparatory Commission’, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence xivi (2001).
4 Leila Nadya Sadat, “Summer in Rome, Spring in the Hague, Winter in Washington?: U.S. Policy Towards the International Criminal Court”, (2003) 21 WIS. INT’L. L. J. 557, 575.
5 Leila Nadya Sadat, “The International Criminal Court: Past, Present, and Future”, Forthcoming in the Cambridge Compendium of International Criminal Law, (2014): 2-14.
6 Article 12(2) of the Statute of Rome
7 Article 12(2) of the Statute of Rome
8 Article 13(b) of the Statue of Rome
9 Article 12(3) of the Statue of Rome
10 Article 12(3) of the Statute of Rome
11 Article 113 of the Statute of Rome
12 Coalition for the International Criminal Court, “Budget and Finance Background of the ICC”, Organization for the Coalition of the international Criminal Court (2015), (accessed December 7th, 2015) http://www.iccnow.org/?mod=budgetbackground
13 Coalition for the International Criminal Court, 2015.
14 International Criminal Court, The Rome Statute of the International Criminal Court, A/CONF.183/9 (July 17, 1998) http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
16 Karl Kautsky, “Der Imperialismus,” Die Neue Zeit, Vol. 32, No. 2 (1914), p. 909.
17 Rudolf Hilferding, “The Economic Policy of Finance Capital”, in Das Finanzkapital, (Vienna: Wiener Volksbuchhandlung, 1910): 314.