CommentaryJURIST Special Guest Columnist Sam Sasan Shoamanesh, a legal adviser with the International Criminal Court (ICC) in The Hague and co-founder and Associate Editor of Global Brief, Canada's first international affairs magazine, says that in order for the ICC to be fully effective in protecting human rights and bringing an end to impunity, Middle Eastern nations and all other states that have not yet ratified the Rome Statute must embrace the ICC.
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Without diving into whether or not such general criticisms are valid, as it relates to the ICC these views are not only ill-founded but sadly are serving to hamper the advancement and protection of human rights for the peoples of the region. And tragically, this in a ‘land’ that has historically experienced countless conflicts and that continues to lay witness to the suffering of millions of its inhabitants whose fundamental human rights have and continue to be trampled upon. A clearer understanding of the legal machinery and independence of the Court will reveal that there is in fact a symbiotic relationship between the ICC and Middle Eastern states, and more generally all sovereigns earnestly concerned about the cause of human rights and ensuring egregious international crimes do not go unpunished. The opportunity for this mutually fruitful partnership is yet to be fully seized.
To date, the Hashemite Kingdom of Jordan is the only state in the region which has ratified the founding treaty of the Court (Rome Statute: EN, FR, Arabic), thus becoming the sole representative of the ‘Middle East’ at the ICC. This status quo must change. This commentary by design is aimed at responding to some of the anxieties and misperceptions which to date have prevented the region's nations from assuming their rightful places amongst the 110 and growing States Parties of the ICC.
1.0. Misconceived reservations about ICC ratification, jurisdiction, and independence
Misconceived notions that the Court is political or easily manipulated by the ‘Great Powers’ representing a threat to state sovereignty are ill-informed and emanate mostly from misapprehensions of the Court’s legal machinery. There are, in fact, layers upon layers of protection existing in the legal edifice of the Court serving to guarantee the ICC’s independence and respect for state sovereignty.
1.1. The complementarity principle
To cite but a few examples, State Parties to the ICC, in the first instance will always exercise jurisdiction over their nationals even if they are accused of crimes falling within the mandate of the Court. The complementarity test under Article 17 of the Statute, in practice, means the ICC operates as a court of last resort, giving primacy of jurisdiction to national courts (see para. 10 of the Preamble and Article 1 of the Statute), exercising its jurisdiction only if the State Party is “unwilling or unable to genuinely” carry out investigations or prosecute violations of the specific crimes falling within the ambit of the Court’s jurisdiction (Article 17.1(a)-(b)). “Sufficient gravity” of the crimes must also exist to warrant the Court’s intervention (Article 17.1 (d)).
Further, the contention that the complementarity test will favor Western nations that have well established legal systems is not entirely accurate. The complementarity test is not gauged against a universal gold standard, but rather, guided by the criteria outlined in Article 17 of the Statute, it is applied on a case-by-case basis based on the specificities of the legal system in question. In effect, the Court fully respects the autonomy of national legal systems. Yet of course, the proceedings at the national level must be genuine, impartially and independently carried out “with an intent to bring the person concerned to justice,” and they must respect the “principles of due process recognized by international law” (Article 17.2). Otherwise, the state in question will be considered “unwilling” to carry out the investigation and where warranted, the prosecution. The “inability” to investigate or prosecute test outlined in Article 17.3 of the Statute concerns the “total or substantial collapse or unavailability” of the national judicial system, or relates to situations where the system is “unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” The legal requirements of Article 17.3 are designed to respond to, for instance, failed state situations or other cases where internal political dynamics and reality on the ground do not make it possible for lawful prosecutions to be carried out. Other situations where the state may be considered unable to adequately investigate and prosecute is where the domestic legal environment is operating in the midst of an active conflict or post-conflict situation. The complementary assessment does not, therefore, aim to scrutinize the substantive nature of a given domestic legal system.
Additionally, the complementarity principle in practice would translate into a situation where nations that have ratified, in order to strengthen their primary jurisdiction, will be inclined to initiate legislation and projects aimed at fortifying the domestic legal landscape and incorporating international crimes under the Court’s jur
isdiction into domestic law — clearly a positive ancillary consequence of ratification in the overall aim of promoting human rights.
Lastly, it is important to highlight an important point contained in the Policy Paper of the Office of the Prosecutor. Guided by the wording of the preamble (para. 4) and other pertinent provisions of the Statute (Article 5.1), ICC prosecutions are solely concerned with “those who bear the greatest responsibility” for the “most serious crimes of concern to the international community” within the Court’s jurisdiction. In effect, this means that the Office of the Prosecutor as a general rule will only be interested in the ‘big fish’ and will not be investigating every potential violation committed by actors positioned lower in the hierarchy. This policy is yet another ICC reality which minimizes the Court’s scrutiny into otherwise sovereign domain. The “sufficient gravity” principle encapsulated in Article 17.1(d) of the Statute, again, further confines the intervention of the ICC to only exceptional cases where a clear threshold of “gravity” of the acts constituting the crimes in question and the degree of participation in their commission have been reached to justify further action by the Court.
1.2. Preconditions and exercise of jurisdiction
The ICC exercises its jurisdiction over natural persons and attributes individual criminal responsibility to those who: either (i) as nationals of a State Party have committed offences within the jurisdiction of the Court, or (ii) committed such crimes in the territory of a State Party. Further, the Court exercises its jurisdiction rationae temporis and without retroactive application. Therefore, the Court can have jurisdiction only with respect to crimes committed after the entry into force of the Statute (1 July 2002). As it concerns nations that ratify after the entry into force of the Statute, the Court can exercise jurisdiction over crimes committed after the date of ratification by that state. An exception to this rule is provided for in Article 12.3 of the Statute where a state can make a declaration under the provision to bring itself under the jurisdiction of the Court with respect to a crime(s) previously committed (with 1 July 2002 being the cut off date).
The Court may exercise its jurisdiction when a situation is referred to the Prosecutor by a State Party or the Security Council, or finally, when the Prosecutor initiates an investigation proprio motu (on its own accord) (Article 13). Where the ICC Prosecutor initiates an investigation on his own, in all such instances, it is up to the Pre-Trial Chamber of the Court consisting of a panel of international judges — a separate and independent judicial organ — to review the evidence and determine whether or not the Court has jurisdiction and whether a “reasonable basis” exists for the Prosecutor to proceed with investigations (Article 15.3-4). It is also the Pre-Trial Chamber which decides if a warrant of arrest is to be issued in response to an application filed by the Office of the Prosecutor (Article 58). Even where an investigation is undertaken by the Prosecutor, within a defined period, the State Party whose national is under investigation can inform the Prosecutor it is or will carry out its own investigations of the crimes in question. If done in good faith, the State Party can then undertake the prosecution at the national level. Further, the prohibition against double-jeopardy is entrenched in the ICC Statute, so that a person who has already been tried by a national court for crimes falling within the jurisdiction of the Court cannot be re-prosecuted by the ICC (Article 20). Again, the trial at the national level has to be fair and impartial and not merely a ploy to shield the person from criminal responsibility.
More importantly, even when the Security Council refers a situation to the Prosecutor acting under Chapter VII of the UN Charter (Article 13(b)) — as was the case with Sudan for instance — contrary to popular belief, the Prosecutor is not automatically bound to follow the referral. The Office of the Prosecutor will independently assess the information and evidence received from all sources and gauge whether there is a “reasonable basis to proceed” to initiate an investigation (Article 53). In the words of the Office of the Prosecutor: “[t]he triggering mechanism does not in any way change the way the Office selects situations, cases or individuals to be investigated. It does not make a difference whether the situation is referred by a State Party or the UNSC [United Nations Security Council]. The selection of situations, cases inside the situations, and persons to be investigated is always an independent prosecutorial decision based on the Statute and the evidence collected.”
These independence mechanisms are the sine qua non of the Court’s legitimacy and credibility. In sum, the Court operates independently de jure and de facto.
The above should therefore clarify for the Middle Eastern critic why at this juncture in the Court’s evolution the ICC could, for instance, pursue cases related to the 30 African states, or the other 80 nations that have ratified the Court’s Statute, but not in other situations. It also bears noting that in the past, the Office of the Prosecutor has scrupulously analyzed allegations of war crimes, genocide, and crimes against humanity allegedly committed in Iraq by the UK army (the UK is a State Party). The Office of the Prosecutor has even determined that based on “all the available information, […] there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely willful killing and inhuman treatment” (“War Crimes”: Article 8). Yet having conducted a thorough analysis, it concluded that the Article 17 gravity threshold was not met in the case. “4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment” by the UK army were identified based on the materials before the Office of the Prosecutor. Further, it was determined that the complementarity test was satisfied in the case; meaning that “national proceedings [in the UK] has been initiated with respect to each of the relevant incidents” under study. Additionally, in April 2008, the Chief Prosecutor of the ICC confirmed his office was analyzing the situation in Afghanistan — a State Party —, and amassing information to gauge if and when to commence official investigations into alleged crimes committed on Afghan territory. Recently, he has echoed his previous statement stating that the office is gathering data on possible war crimes committed in Afghanistan relating to both NATO and Taliban forces. Again, outside of the African continent, the Office of the Prosecutor is also busy conducting preliminary inquiries in Georgia and the Gaza Strip. It is interesting to note that the fact-finding mission mandated by the UN Human Rights Council to investigate the Gaza War of 2008 has just concluded that there is evidence indicating that both the Israel Defense Forces and Palestinian armed groups committed actions amounting to war crimes and potentially crimes against humanity. The 574-page report of the mission, headed by Justice Richard Goldstone, recommends the Israeli and Palestinian authorities to undertake “credible” investigations and prosecutions into alleged violations and report their progress to the Security Council within six months. More interestingly for the purposes of this commentary, the report concluded that upon expiration of the deadline if the parties have failed to oblige, the Security Council should refer the situation to the ICC Prosecutor. Whether or not this transpires will be known in time, and will depend on the workings of the Security Council.
Therefore when objectively examined, the issue is not a question of a ‘bias’ in the modus operandi of the Court, but simply the reality of the Court’s jurisdiction limited primarily by the very fact that Middle Eastern states — except Jordan — amongst other nations have to date failed to ratify. This limiting reality can change for the benefit of all who genuinely value human rights as more nations ratify the Statute.
2. Benefits of ratification
The grim lessons of the region’s modern history, further complicated by its geopolitical reality and strategic importance, combine to support the notion that ICC ratification can in fact prove beneficial by acting as a deterrence mechanism and by providing legal recourse in the event that nations from the region fall victim to aggression by neighboring states. Examples of disparaging regional interstate conflicts in recent memory include: Iraq’s invasion of Iran and Kuwait in 1980 and 1990 respectively, Israel’s offensive on Lebanon in 2006, and the wars waged against Israel in the 1948 Arab-Israeli War or the Yom Kippur War to name a few. Furthermore, the ICC could protect the region's states from external threats similar to the Persian Gulf War in 1990 or the 2003 American invasion of Iraq.
By becoming a State Party, Middle Eastern states would facilitate the jurisdiction of the Court over crimes covered by the Statute committed by a foreign military force or armed groups on their territory, even if the aggressor(s) are not nationals of a State Party. A real life example which highlights the importance of ratification is the 2008 South Ossetia War. Georgia was a State Party at the time the conflict broke out, during which the Russian military was engaged on Georgian territory. The fact that Georgia has ratified the Statute has meant that the Court has territorial jurisdiction and could potentially investigate alleged crimes committed on Georgian territory by all sides to the dispute. This includes the Russian army, notwithstanding the fact that Russia is not a State Party of the Court. The Georgia matter is currently under analysis by the Office of the Prosecutor.
Of course, ratification would also mean that should States Parties commit the crimes listed in the ICC Statute in their own territory or elsewhere against their own populations or the nationals of another state, whether a State Party or otherwise, their own actions would become subject to examination under the Court’s jurisdiction — again a positive result if we are genuinely committed to protecting human rights and bringing an end to impunity. In each scenario, the complementarity test and other questions of admissibility must be positively answered before the Court will exercise its de facto jurisdiction. Nonetheless, one can see how ratification could (i) have a deterrence value for would-be aggressors, (ii) provide an avenue for judicial recourse for violations committed by internal and external actors, and (iii) help cultivate a culture of human rights and awareness of international criminal law in the region.
3. Rights of the defense at the ICC
Yet another anxiety contributing to reservations of joining the ICC is the question: what happens to the state’s nationals once implicated in proceedings before the Court? What kind of legal representation and defense are they afforded? These are legitimate questions that any sovereign should pose before surrendering its nationals to another jurisdiction to be tried.
From a legal framework, the Court’s legal texts are replete with safeguards concerning the rights of the defense. Fundamental guarantees are found in the Statute, which include, inter alia, the codification of the principles of Ne bis in idem (Article 20); prohibition against the creation of ex post facto laws (Article 22); grounds for excluding criminal responsibility (Article 31); and presumption of innocence (Article 66). The rights of the accused to a public, impartial and fair hearing, amongst other minimum guarantees are provided in Article 67 of the Statute. Article 67 rights of the defense are consistent with international instruments providing the same guarantees (e.g. Article 14 of the International Covenant on Civil and Political Rights, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). The exercise of such rights is effectively assured by the judicial control of the Court’s Chambers. Moreover, Rule 20 of the Rules of Procedure and Evidence places a positive obligation on the Registrar of the Court to organize “the Registry in a manner that promotes the rights of the defense consistent with the principle of a fair trial.”
Building on the lessons acquired from the experience of hybrid special courts and the UN ad hoc tribunals, with the aim of achieving ‘equality of arms’ between the prosecution and the defense, the ICC has in place the most robust systems. From ensuring that defendants freely choose their lead counsel from a pool of qualified independent lawyers, and benefit from capable legal teams reinforced by substantive legal assistance provided by the Office of Public Counsel for the Defense, to a structured favorable legal aid scheme and other support services, the defense pillar at the Court is alive and well, and continues to be bolstered. Admission to the Court’s List of Counsel eligible to represent suspects and accused persons in ICC proceedings is open to all lawyers worldwide who meet certain quality assurance requirements (see Rule 22 of the Rules of Procedure
and Evidence: EN, FR, Arabic; and Regulation 67 of the Regulations of the Court: EN, FR, Arabic). Qualified lawyers from the Middle East and beyond ought to apply to the Court’s List of Counsel to get involved in ICC proceedings first hand, contribute to the Court’s legacy, and carry the knowledge acquired back to their home jurisdictions. Lawyers need not be citizens of a State Party to apply to the Court’s List of Counsel.
Since its genesis, the ICC has aimed to be a model judicial institution capable of delivering quality justice. The ICC has in practice demonstrated that it is cognizant of the fact that a strong defense pillar at the Court and the conduct of fair trials before an independent judiciary that pay homage to the rights of the defense are pivotal in ensuring that the virtuous principles and goals defined in the preamble of its Statute can be achieved. Moreover, a viable defense and the conduct of fair trials are critical to achieving universal jurisdiction — an important aim of the Court. Lastly, trials that are conducted in conformity with the highest judicial standards and respect for due process rights of defendants also prevent the adverse result that would otherwise exist where warranted convictions are obtained, yet victims are re-victimized and their ordeals cheapened by critics of the system who would label the proceedings as partial or tainted with due process failures. The Court is very much in tune with these concerns. While there is always room for improvement, an objective assessment of the record to date illustrates that the Court makes every effort to avoid such an undesirable outcome, ensuring that individuals implicated in proceedings before it benefit from fair trials. The stay of proceedings by Trial Chamber I in the case of Prosecutor v. Thomas Lubanga Dyilo is a case in point. The judges of the Trial Chamber in that case ruled that the Prosecution’s inability to disclose to the defense exculpatory materials in its possession obtained through confidential agreements with the United Nations pursuant to Article 54.3(e) of the Statute had worked to the detriment of the rights of the accused to a fair trial. On appeal, the Trial Chamber’s decision to stay the proceedings was upheld by the Court’s Appeals Chamber. A myriad of other examples are to be found in the growing ICC jurisprudence and in the policies and modus operandi of the Registry of the Court.
Consequently, any person ever brought before the Court will be afforded all the requisite facilities, legal assistance, and safeguards in an effort to ensure he/she undergoes a fair trial.
4. Lack of judges trained in Islamic traditions
A further expressed concern is that there are no judges at the ICC trained in Islamic law. The argument is as follows: given that ICC judges are not accustomed to the intricacies of Islamic law, they will judge Middle Eastern states — whose legal systems are for the most part influenced by the Shari’a — unfairly. Again this is a misconception. The hierarchy of applicable law at the Court is provided in Article 21 of the Statute, which stipulates that in the first instance, the legal texts of the Court should be applied, second, followed by international treaties and principles and jurisprudence established in international law where appropriate, and lastly, when the other two sources are exhausted, reference can be made to the general principles of law as found in national laws of legal systems of the world. Hence, a judge’s religious training or personal background are immaterial to the extent that these have no real bearing on what law should be applied. This means that no matter the personal belief of a particular ICC judge, whether secular, Muslim, Jewish, or Christian, he or she is strictly bound to apply the sources of law defined in Article 21 of the Statute and in the sequence required. At best, a judge’s theological training or background at the national level may have a bearing when a last-resort reference is made to national laws. Even then, national laws could be relied upon provided they are not inconsistent with the Statute, “international law and internationally recognized norms and standards.”
For what it is worth, should any Middle Eastern state become a State Party, it will have the right to nominate its own candidates for election as ICC judges (Article 36). The Statute also requires that judges are selected in view of representation of all legal systems of the world as well as equitable geographical considerations (Article 36(8)). Hence, it is fair to conclude the possibility of having such nominees elected are rather probable. Moreover, membership with the Court will mean Middle Eastern prosecutors, judges, lawyers, and other relevant professional can apply and take up vacancies in all organs of the institution, seeing firsthand how the ICC operates while having the opportunity to contribute to the Court’s development.
5. The ‘cultural relativism’ hurdle
International humanitarian law and international criminal law are designed to deter and minimize the suffering and occurrence of war, and to hold those responsible for the commission of the most serious crimes of concern to the international community accountable for their actions. The unsightly face of war is universal. The same is true for the laws created to bring method to the madness of war. Hence, to the honest observer, the position that such laws have ‘Western’ orientations and therefore, should not be applied to Eastern Islamic societies does not withstand the slightest objective scrutiny. This holds particularly true in light of the fact that the Qur’an itself, apart from embracing the notion of “justice” as one of its core principles, contains countless provisions itemizing unacceptable conduct during hostilities. For instance, under Islamic Law in the ‘Siyar’ (Arabic for ‘behaviour’) war can only be waged in self-defence (Qur’an 2:190, 193). Further, Islamic scholars assert that concepts such as the ‘principle of distinction’, that belligerents must distinguish between civilians and combatants; the principle of ‘necessity and proportionality'; the proper treatment of prisoners of war (Qur’an: 9:5, 47:4) and the prohibition against their executions; and the prohibitions against enslavement, plunder, destruction of civilian objects, and the use of poisonous weapons are all Islamic doctrines enshrined in the Qu’ran and the Hadith, oral traditions based on the spoken words and conduct of Prophet Muhammad during his lifetime.
To claim, therefore, that certain provisions of the Statute may not be compatible with Islamic law (Shari’a) — applied strictly in only a handful of Middle Eastern states — and therefore, they cannot ratify the Statute is a patently untenable position to maintain. In particular when countless States Parties of the ICC have Islamic Constitutions; Islam as their official religion, or as the religion of the maj
ority of their population (circa 50 percent or more). The table below lists these countries, with other relevant details.
*NB: Additionally, two other States Parties to the ICC that have substantial Muslim populations are Bosnia and Herzegovina (40 per cent) as well as Tanzania (35 per cent).
In view of the above, should Middle Eastern nations adopt a rigid position vis-Ã -vis ratification, while the 110 member states of the Court and growing will embrace the 21st century and reap the protections afforded by the ICC, the region will find itself exposed and isolated from an increasingly interconnected international community. Finding themselves positioned in a historically quarrelsome region, it is in the interests of Middle Eastern nations to recognize that joining the ICC is in fact in their national interests. Should such states wish to import into ICC law elements of, inter alia, Islamic jurisprudence, -rationale and -approach which are in conformity with universally accepted legal norms, they can do so by engagement and involvement, not by alienation and isolation.
6. Head of state or government immunity
Article 27 of the Rome Statute pierces the traditional head of state or government immunity by extending the reach of the Court’s jurisdiction to all those who commit egregious crimes irrespective of their title or status. Immunities afforded to heads of states will not bar the Court from the exercise of its jurisdiction. This rule is in keeping with earlier precedents in the discipline both codified and judicially rendered (see e.g. Genocide Convention (Article IV); Charter of the International Military Tribunal of Nuremburg (Article 7); Statutes of the International Military Tribunal for the Far East Charter (Article 6); International Criminal Tribunal for the former Yugoslavia (Article 7(2)); International Criminal Tribunal for Rwanda (Article 6(2)) and the Special Court for Sierra Leone (Article 6.2). See similarly Article 6 of the Statute of the Special Tribunal for Lebanon with respect to invalidity of amnesties; SCSL Appeals Chamber ruling of 31 May 2004 re Charles Taylor; ICTY Trial Chamber ruling of 8 November 2001 re Milosevic, and ICTY Trial Chamber ruling of 8 July 2009 re Karadzic cases to name a few). Prohibitive non-derogable norms of egregious international crimes like genocide, crimes against humanity and war crimes are arguably jus cogens crimes and cannot reasonably be considered as part of a state’s legitimate functions to justify immunity protection.
While heads of states or other senior officials of governments in the Middle East and elsewhere might feel anxious with respect to this provision, failing to ratify on this ground alone cannot possibly be in line with a genuine commitment to the cause of human rights both domestically and internationally. Surely we can all agree the principle of immunity in international law should not be used as a shield to protect the hostis humanis generis from due prosecutions.
To conclude, certainly it is a most notable position to advance that we want justice applied equally to all those who commit crimes which shock the human conscience. We must equally understand that if there is any international judicial institution which has the right history and founding, and the potential to be a truly international court of criminal justice, it is the ICC. It is not by rejectionism that we can better ensure the balance of international justice and rule of law remains impartial and free from political interference, but by involvement and support for the Court. It is through ratification and through helping the Court achieve universal jurisdiction that the net of the ICC can be cast ever wider to catch all those who are criminally responsible whether at home or abroad.
The Middle East offered the world the first legal code crafted by Urukagina in 2300 B.C.; the Code of Hammurabi (1790 B.C.); the Cyrus Cylinder (539 B.C.), considered to be the first charter of human rights in recorded history, and the Treaty of Kadesh (1274 B.C.), the world’s first international peace treaty. The region has been the birthplace of many of the major canons of human morality — Zoroastrianism, Judaism, Christianity, and Islam to name a few — carving human philosophical reflections over the ages into rudimentary yet fundamental questions of ‘right’ and ‘wrong,’ detailing codes of acceptable human conduct (i.e. Ten Commandments…). In the 21st century, the region can stay true to its prolific beginnings by embracing the International Criminal Court, truly a first in its class and for its time. By so doing, Middle Eastern states can dramatically change the status quo for the benefit of the region and the cultivation of a culture of respect for human rights globally. With active participation they can help make the international face of the Court shine ever brighter with diversity, all the while assisting it to better achieve the notable aims outlined in its founding treaty.
The world is a complex place dominated by realpolitik considerations. By shedding traditional self-defeating rejectionist postures and by espousing the ICC as State Parties, those in power in the Middle East can enhance the region's standing in the international legal order, and more importantly, they can demonstrate whether they are truly committed to the protection and promotion of the inviolable human rights of their citizens. Imagine an international criminal justice system under which “no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.” It is by ratification that Middle Eastern states and all nations that are yet to embrace the ICC can bring us ever closer to this ideal existence. It is only then that we can finally proudly proclaim that we as citizens and nations of the world recognize the inviolability of human rights and will not allow violations and violators to go unpunished.
Sam Sasan Shoamanesh is an international lawyer and has worked for several international legal institutions. He is a legal advisor with the International Criminal Court (ICC) in The Hague, Netherlands, a position he has held since 2005. He is the co-founder and Associate Editor of Global Brief, Canada’s first international affairs magazine. The views exp
ressed in this article have been provided in the author’s personal capacity, and do not necessarily reflect the views of the ICC or Global Brief.
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