Law Opinion
The true colours of the ICC
Tahasin Md. Iqbal
The International Criminal Court (ICC) was established, and is governed, by the Rome Statute 1998; which became effective from 1 July 2002. The Chapeau of this Statute provides that the objectives of the Court are, inter alia, protecting 'peace, security and well-being of the World', ending impunity for 'the most serious crimes of concern to the international community' and in turns preventing 'such crimes' and also guaranteeing 'international justice'; and these well-chosen words portrays the ICC as an entity that has the best interest of humanity at its core; which would explain the 114 State parties of the Rome Statute.
The ICC's jurisdiction, as per the Rome Statute, extends to the following crimes: 'the crime of genocide' Article 5(1)(a); 'Crimes against humanity' Article 5(1)(b); War crimes' Article (5)(1)(c); and 'the crime of aggression' Article 5(1)(d). The Court 'may exercise its jurisdiction', according to Article 13, in three of the following circumstances:
First, a State party to the Rome Statute may refer a situation to the ICC's prosecutor Article 13(a). Three member states have opted for this option, namely Uganda, the Democratic Republic of Congo and the Central African Republic, to refer their own situations to the ICC.
Second the United Nations Security Council (UNSC) 'acting under chapter VII of the Charter of the United Nations' (UN) can refer a situation to the Prosecutor Article 13(b). The UNSC exercised this power twice when it referred, Darfur Sudan and Libya; despite the fact that these two countries have not ratified the Rome Statute. Sudan's representative to the UN, Elfaith Mohamed Ahmed Erwa, said that the ICC's intervention 'in Darfur, but exposed the fact the ICC was intended for developing and weak countries and was a tool to exercise cultural superiority'. It seems that he was not very far from the truth; as amongst the UNSC's five permanent members, with the power to veto resolutions, Russia, China and the United States (U.S.) are not State Parties to the Rome Statute, and yet they get to decide whether the ICC should intervene in the territories of other States regardless of whether the state in question is a member or not.
Third the Prosecutor can take the initiative to initiate 'an investigation' Article 13© in accordance with Article 15, which authorizes the Prosecutor to take action Proprio motu if such crimes falls within the jurisdiction of the Court Article 15(1). The prosecutor invoked this power to initiate investigations in Kenya.
There is an old saying that 'action speaks louder than words'; and a closer look at the ICC's action reveals a sinister pattern i.e. all the ICC's intervention took place in African countries, without delay; even though intervention was possible elsewhere, where the Prosecutor has shown hesitation e.g. Francis A. Boyle, a professor of the University of Illinois College of Law in Champaign, USA, filed a complaint with the ICC 'against U.S. citizens George W. Bush, Richard Cheney, Donald Rumsfeld, George Tenet, Condoleezza Rice, and Alberto Gonzales… for their criminal policy and practice of “extraordinary rendition”'; where he pointed out that 100 human beings, consisting mainly of Muslims/Arabs/Asians and People of Colour', were on the receiving end of this cruel practice; he also raises doubts as to whether '100 White Judeo-Christian men' would have shared the same fate. Therefore the esteemed professor argued that such practice was '“widespread” and “systematic” as required by Article 7(1); and also constitutes 'Crimes against Humanity' which violated, and fell within the scope of, 'Articles 5(1)(b), 7(1)(a) and 7(1)(e) to 7(1)(k)'. The fact that the US is not a State Party to the Rome Statute should not prevent the prosecution of US citizens, as argued by professor Boyle, because the crime in question have been committed in the territories of several state parties and Article 12(2) provides that 'In the case of Article 13, Paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute...'. Moreover Professor Boyle argued that his complaint would satisfy the condition under Article 15(3), to constitute 'a reasonable basis to proceed with an investigation'. Therefore he requested, in his complaint, that the Prosecutor of the ICC to initiate an investigation, under Article 13(c), proprio motu, on the basis of the well informed complaint, as required by Article 15(1). Furthermore Professor Boyle added that 'President Obama and his Attorney General Eric Holder' made it known in 'public statements' that they would not 'open any criminal investigation of any of' the US citizens mentioned above, therefore there would be no issue contradictions with 'Article 1 (Complementarity) and Article 17' (issues of admissibility). As a result of this detailed complaint the Prosecutor is now examining this situation.
Israel, although not a State Party to the Rome Statute, is notorious for violating human rights of the Palestinians. However it is important to note that, because of ICC's temporal Jurisdiction, under Article 11(1), and the non-retroactivity principle, under Article 24(1), we shall limit ourselves to crimes committed after 1 July 2002. One example of such atrocities was the crimes committed during the armed conflict, by the Israeli force, in the Gaza strip during 2008-2009. Daniel Benoliel and Ronen Perry in an article called 'Israel, Palestine, and the ICC' argued that after 'Palestinian National Authority' filed a complaint with the Prosecutor 'Under Article 12(3), which empowers non-members to accept the Court's jurisdiction', which presumably led the current Prosecutor to examine ways to bring 'Israeli commanders' to justice for their actions. Moreover, they argued that if the prosecutor embarked on such an endeavour then he bears the responsibility of deciding whether Palestinian Authority or the Gaza strip is a state. It could be argued that the stateless status of Palestine would make it easier for the Prosecutor to avoid prosecution of Israeli citizens. Daniel Benoliel and Ronen Perry also pointed out that UNSC could refer Israel to the ICC; however the US, being a de facto ally of Israel, would most certainly veto such a resolution.
Another incident by Israeli commandos could potentially bring them within the scope of the Rome Statute for their attack 'on the Freedom Flotilla' which was 'a Turkish-backed aid convoy' that tried to deliver 'humanitarian supplies to Gaza', as argued by an international lawyer Alfred Lambremont Webre, under Article 12(2)(a) which provides that the Court may exercise jurisdiction where 'the State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft'. The Flag State of the vessel was Comoros Islands which is a State Party of the Rome Statute, therefore the prosecutor ought to start an investigation under Article 12(2)(a); nevertheless the Prosecutor still seems reluctant.
In fine, the Prosecutor's procrastination with regards to US and Israel and the over enthusiastic interventions in Africa shows that the sugar-coated words in the preamble are nothing more than rhetoric, and also proves Thucydides right when he narrated in his book 'History of the Peloponnesian war' that '[W]hen these matters are discussed by practical people, the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept'. Now the ICC seems to be a tool that allows the strong to do as they like and judges only the weak; therefore it is high time that State Parties ought to rethink their allegiance to the Rome Statute that produced a biased entity, which maintains this double standard, and aim to render it enfeebled.
The author is a faculty of the School of Law, BRAC University.
