A Role for the International Criminal Court in the Fight against Terrorism? potx

K.U Leuven Faculty of Law Institute for International Law Working Paper No 26 - August 2002 A Role for the International Criminal Court in the Fight against Terrorism? Kris Verdoodt The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organisations at the Faculty of Law of the University of Leuven The Institute also organises colloquia, seminars, workshops and lectures which bring current issues of international law to the fore The working paper series, started in 2001, aims at a broader dissemination of the results of the research of the Institute and of other researchers in the academic community and in society It contains contributions in Dutch, in English and in French Reference may be made to these working papers with proper citation of source For more information and a complete list of available working papers, please visit the website of the Institute for International Law on www.internationallaw.be  Instituut voor Internationaal Recht, K.U Leuven, 2001-2002 Institute for International Law K.U.Leuven Tiensestraat 41, B-3000 Leuven Tel +32 16 32 51 22 Fax +32 16 32 54 64 Prof Dr Jan Wouters, Director A Role for the International Criminal Court in the Fight against Terrorism? Kris Verdoodt TABLE OF CONTENTS I THE PROTRACTED PROCESS OF NEGOTIATING THE STATUTE General Terrorism II ARGUMENTS IN SUPPORT OF INCLUDING TERRORISM General a) b) Arguments in support of including internal terrorism Structural impunity – affected nation in state of political anarchy 10 Political context warranting a transfer of jurisdiction to the ICC 11 a) b) Arguments in support of including international terrorism 16 Impunity - custodial state neither prosecutes nor extradites 18 Political context warranting a transfer of jurisdiction to the ICC 26 III ARGUMENTS AGAINST INCLUDING TERRORISM 28 a) b) c) d) e) Arguments against the establishment of the ICC as such 28 The principle of national sovereignty 29 Politically biased or lenient Prosecutors and judges 30 No guarantees for a strict observation of due process requirements 43 Ineffective investigation due to conflicting national security interests 45 Jeopardizing highly delicate political balances 47 a) b) c) Specific arguments against including terrorism 49 The risk of overburdening the Court 49 The risk of politicizing the Court 50 The risk of trivializing the role of the Court 50 IV AMENDMENTS TO THE STATUTE REQUIRED? 51 V CONCLUSION 53 On July 1, 2002, the International Criminal Court (hereinafter referred to as the “ICC” or the “Court”) will become operative The ICC will have subject matter jurisdiction over crimes of genocide, war crimes and crimes against humanity The Court will have jurisdiction over the crime of aggression as soon as agreement can be reached on a definition of that crime Crimes of terror are not included in the subject matter jurisdiction of the Court It is the purpose of the present thesis to assess arguments in favor and arguments against such inclusion of crimes of terror, and, if the arguments in favor are found to outweigh the arguments against inclusion, also to examine to what extent the statute governing the ICC should be amended I The protracted process of negotiating the Statute General In December 1990, Trinidad and Tobago suggested to the General Assembly of the United Nations (hereinafter referred to as the “UN General Assembly”) to initiate an exploratory probe into a possible establishment of an international criminal court Trinidad and Tobago found the structural weakness of the criminal justice system in a number of nations to be a major problem in the fight against international drug trafficking, which led them to conclude that an international criminal court would be an adequate and even indispensable tool in an effective combat against powerful international drug cartels.1 Pursuant to the initiative of Trinidad and Tobago, the UN General Assembly instructed the International Law Commission (hereinafter referred to as the “ILC”) to develop a tentative set of rules governing the composition, jurisdiction and See website of the united Nations on the ICC, http://www.un.org/icc/overview.htm functioning of the ICC The ILC came up with a first report on its activities in 19902, and adopted a first draft statute for the ICC in 1993 (hereinafter referred to as the “1993 ILC Draft”)3 The 1993 ILC Draft received substantial criticism from quite a number of national governments, which led the ILC to adopt an amended draft statute for the ICC the next year (hereinafter referred to as the “1994 ILC Draft”)4 The larger part of the international community considered the 1994 ILC Draft to be a much more acceptable basis for further discussion than the 1993 ILC Draft For the first time, also the United States signaled its willingness to engage in constructive talks on a statute for the Court5 Shortly after the release of the 1994 ILC Draft, the UN General Assembly established an ad hoc committee (hereinafter referred to as the “Ad Hoc Committee”), which was instructed to further develop some controversial issues already addressed by or deliberately left out of the 1994 ILC Draft The Ad Hoc Committee released a report on its activities in 19956 In the same year, the UN General Assembly established a preparatory committee (hereinafter referred to as the “Preparatory Committee”), instructing it to further elaborate the 1994 ILC Draft based on the report issued by the Ad Hoc Committee The draft statute to be developed by the Preparatory Committee was intended to serve as a basis for final multi-lateral negotiations of a statute for the ICC The Preparatory Committee adopted a new draft statute in April of 1998 (hereinafter referred to as the “Prep Report of the International Law Commission on the work of its forty-second session, U.N GAOR, 45th Sess., Supp No 10, at 36, U.N Doc A/45/10; Rupa Bhattacharyya, Establishing a rule-of-law international criminal justice system, 31 Tex Int´l L.J 57, 61 (winter 1996) Report of the International Law Commission on the work of its forty-fifth session, U.N GAOR, 48th Sess., Supp No 10, at 258, U.N Doc A/48/10; G SLUITER, “An International Criminal Court is hereby established”, Netherlands Quarterly of Human Rights 1998, (413) 414, Rupa Bhattacharyya, Establishing a rule-of-law international criminal justice system, 31 Tex Int´l L.J 57, 61 (winter 1996) Report of the International Law Commission on the work of its forty-sixth session, U.N GAOR, 49th Sess., Supp No 10, at 29, U.N Doc A/49/10; C VAN DEN WYGAERT and G STESSENS (eds.), International criminal law A collection of international and European instruments, The Hague, Kluwer Law International, 1996, 477-498 T.L.H MC CORMACK and G.J SIMPSON, “A new international criminal law regime?”, Netherlands International Law Review 1995, (177) 203-204 Report of the Ad Hoc Committee on the establishment of an International Criminal Court, U.N GAOR, 50th Sess., Supp No 22, U.N Doc A/50/22 Report of the Preparatory Committee on the establishment of an International Criminal Court, http://www.un.org/icc/prepcom.htm Com Draft”)7 A special multi-lateral diplomatic conference was convened in Rome, between June 15 and July 17, 1998 (hereinafter referred to as the “Diplomatic Conference”), at which a final text of the statute was vigorously negotiated The final statute (hereinafter referred to as the “Statute”) was voted and adopted by the Diplomatic Conference on July 17, 19988 The Statute provides that it will enter into force on the first day of the month after the sixtieth day following the day of the deposit of the sixtieth instrument of ratification with the Secretary-General of the United Nations9 The sixtieth instrument of ratification was deposited on April 11, 2002, and the Court will therefore be established on July 1, 200210 Terrorism Article 20 of the 1994 ILC Draft granted subject matter jurisdiction to the Court with respect to the following crimes : - “ (a) the crime of genocide; (b) the crime of aggression; (c) serious violations of the laws and customs applicable in armed conflict; (d) crimes against humanity; (e) crimes, established under or pursuant to the treaty provisions listed in the Annex, which having regard to the conduct alleged, constitute exceptionally serious crimes of international concern.” The crimes referred to under section (e) are generally referred to as “treaty-based crimes” The “annex” referred to in section (e) was a list of existing treaties attached to the 1994 ILC Draft, all of which treaties required states parties to those treaties to See Rome Statute of the International Criminal Court, at http://www.un.org/law/icc/statute/romefra.htm Art 126 Statute 10 See website of the Coalition for the International Criminal Court, consulted on June 3, 2002, at http://www.iccnow.org/html/pressrelease20020411.html incriminate, through national criminal legislation, certain acts, such as drug trafficking, hijacking, torturing and terrorist activities The list of crimes included in the subject matter jurisdiction of the ICC by article 20 of the 1994 ILC Draft reflected the three functions the Court could conceivably be designed to perform11 Including crimes of genocide, crimes against humanity and “serious violations of the laws and customs applicable in armed conflict” in the subject matter jurisdiction of the ICC would render the Court an instrument for human rights and humanitarian law enforcement Granting the Court jurisdiction over the crime of aggression would make it a tool for dispute resolution between states An ICC with jurisdiction over treaty-based crimes would be a tool for crime fighting in areas of long-standing international concern Trinidad and Tobago conceived of the Court as a tool for crime fighting in areas of long-standing international concern, with a specific focus on the battle against increasingly powerful cartels of international drug trafficking Although the 1994 ILC Draft, in its article 20 (e), still endorsed the view of the spiritual fathers of the ICC, a number of delegates in the Preparatory Committee seriously questioned the desirability of allocating to the Court jurisdictional powers over treaty-based crimes, expressing the need to avoid overburdening the limited financial and personnel resources of the Court or trivializing its role and functions, and to avoid jeopardizing the general acceptance of the Court or delaying its establishment12 A majority opinion emerged within the Preparatory Committee that the Court’s jurisdiction should initially be limited to “a set of core crimes that are of concern to the international community as a whole”, including genocide, war crimes and crimes against humanity13 In justifying their narrowing approach to the Court’s jurisdiction, the Preparatory Committee focused on the facilitation of broad acceptance of the 11 See also Lara A Ballard, The Recognition and Enforcement of International Criminal Court Judgments in U.S Courts, 29 Colum Human Rights L Rev 143, 150 (1997) 12 Molly McConville, A global War on Drugs : why the United States should support the Prosecution of Drug Traffickers in the International Criminal Court, 37 Am Crim L Rev 75, 92 (2000) 13 Jelena Pejic, “Creating a permanent International Criminal Court : the obstacles to independence and effectiveness, 29 Colum Human Rights L Rev 291, 311 (1998) Court and the containment of start-up costs, thereby implying that including treatybased crimes is not undesirable in itself14 10 Eventually, at the Diplomatic Conference, the treaty-based crimes were not included in the Statute As a compromise, a resolution was passed by the Diplomatic Conference, confirming that “terrorist acts, by whomever and wherever perpetrated and whatever their forms, methods or motives, are serious crimes of concern to the international community”, and recommending that the states parties to the Statute (hereinafter referred to as the “States Parties”) consider reaching agreement on a definition and including terrorism (and also drug trafficking) at a future review conference, pursuant to Article 123 of the Statute15 Article 123 of the Statute provides that years after the entry into force of the Statute, a Review Conference shall be convened by the Secretary-General of the United Nations to consider any amendments to the Statute Therefore, inclusion of terrorism in the list of crimes falling within the subject matter jurisdiction of the Court, should not be expected to occur at any time prior to 2009 II Arguments in support of including terrorism General 11 For the purpose of assessing arguments pro and contra an inclusion of acts of terrorism in the subject matter jurisdiction of the Court, it is convenient to make a scholarly distinction between “internal” terrorism and “international” terrorism 14 Jelena Pejic, “Creating a permanent International Criminal Court : the obstacles to independence and effectiveness, 29 Colum Human Rights L Rev 291, 311-312 (1998) 15 See Resolution E of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, done at Rome, on 17 July 1998, at http://www.un.org/law/icc/statute/finalfra.htm 12 The concept of “internal” terrorism, as used in this paper, is intended to refer to any and all acts of terror that involve or affect citizens or interests of only one country, including therefore only acts of terror that are perpetrated by nationals of a certain state, on the territory of that state, targeting material or other interests or citizens of that state, and, to the extent that they are politically inspired, stemming from a conflict between the responsible terrorist group and that state “International” terrorism, as used in this paper, is intended to refer to any and all acts of terror that involve or affect citizens or interests of more than one country 13 The physical destruction caused by acts of internal terror, and, if any such conflict exists, the underlying political conflict from which these acts of terror originate, are primarily confined and related to one particular country, whereas the origin and impact of acts of international terrorism directly involve and affect the international community as a whole Therefore, arguments proffered in support of or against the inclusion of acts of internal terrorism in the subject matter jurisdiction of the Court will not run entirely parallel with arguments proffered in support of or against inclusion of acts of international terrorism At first blush, one could perhaps even expect it to be easier to conceive of persuasive arguments in support of including acts of international terrorism than it would be to convincingly argue in favor of including acts of internal terrorism The fact that crimes of international terrorism have a direct impact on the international community makes it easier to support a response on an international level Acts of internal terrorism lack any such direct impact on the international community and are, as such, more often viewed as concerning solely the state affected by them : an intervention of the international community in response to internal terror would therefore more easily be dismissed as an inappropriate interference with the internal affairs of the affected state Arguments in support of including internal terrorism 14 The alternative to having perpetrators of acts of internal terrorism prosecuted and tried by the ICC, is to leave prosecution and trial up to the criminal justice system of the affected state This is how crimes of internal terrorism are currently being handled, and under certain circumstances, it may indeed provide an appropriate and adequate response to internal terrorism 15 However, for a variety of reasons, crimes of internal terror sometimes remain unpunished Pursuing the elimination of such impunity is one argument in favor of granting the ICC subject matter jurisdiction over crimes of internal terror Furthermore, when crimes of internal terror would not remain unpunished but would indeed be prosecuted and tried by the affected state, prosecution and trial by the ICC could nevertheless be the appropriate way of dealing with these crimes, if prosecution and trial by the affected state would take place in an undesirable political context 16 Paragraphs 20 up to 27 will elaborate the instances in which and the various reasons why the present day deference to the national criminal justice system of the affected state may lead either to (a) a situation of structural impunity, or (b) effective investigation, prosecution and trial, in a political context that could arguably warrant a transfer of jurisdiction to the ICC a) Structural impunity – affected nation in state of political anarchy 17 The affected state may be structurally unable to investigate, prosecute and try perpetrators of acts of internal terrorism Currently, Somalia would probably be an example of a country where the rule of anarchy would render investigation, prosecution and trial of internal terrorists structurally impossible The same could probably be said of the present day political situation in Afghanistan : if the Taliban and Al Qaeda would start to use terrorist attacks on Afghan territory to fight the newly installed Afghan government as from tomorrow, it would be doubtful whether 10 by another organ of the Court In so allocating investigative, prosecutorial and trying powers to each of these organs of the Court, the Statute seeks to assure that none of these organs has too determinative an influence on the eventual outcome of the entire criminal procedure This system of checks and balances should be sufficient to prevent a political bias against a suspect or a leniency toward that suspect from eventually controlling the outcome of the procedure Under paragraphs 91 through 103, it will be further elaborated in detail how the Statute strikes this balance of powers a Decision to initiate an investigation 91 Whenever a State Party or the UN Security Council refers a case to the Prosecutor, the referred facts will not necessarily reach the stage of investigation It is up to the Prosecutor, after a preliminary examination of the information provided to him, to decide whether or not there is a reasonable basis to initiate an investigation into the referred facts78 92 When the Prosecutor receives information about a particular crime other than by way of a referral of that crime by a State Party or the UN Security Council, the Prosecutor may conduct, at his own initiative, preliminary examinations on the basis of such information If these preliminary examinations lead the Prosecutor to conclude that there is a reasonable basis to proceed with an investigation, the Prosecutor cannot decide to so proceed at his own discretion but needs the prior approval of the PreTrial Chamber If preliminary examinations lead the Prosecutor to conclude that there is no reasonable basis to proceed with an investigation, the Prosecutor has a duty to accordingly inform those who provided the information to him.79 77 Rule 25 of the Finalized draft text of the Rules of Procedure and Evidence, adopted by the Preparatory Commission for the International Criminal Court, at its 23rd meeting on 30 June 2000, http://www.un.org/law/icc/statute/rules/rulefra.htm 78 Art 53, Statute 79 Art 15 Statute 39 93 When certain facts have been referred to the Prosecutor by a State Party but the Prosecutor decides not to proceed with an investigation into those facts, the referring State Party has the right to request the Pre-Trial Chamber to review the Prosecutor’s decision not to investigate If the facts have been referred to the Prosecutor by the UN Security Council, the UN Security Council has the same right to request a review by the Pre-Trial Chamber Upon review of the Prosecutor’s decision not to investigate, the Pre-Trial Chamber may request the Prosecutor to reconsider his decision.80 94 In case the Prosecutor based his decision not to proceed with an investigation on the argument that an investigation would not serve the interests of justice, the Pre-Trial Chamber has a right to review this decision on its own initiative, in which case the Prosecutor’s decision shall become effective only if confirmed by the Pre-Trial Chamber.81 b Conducting an investigation 95 The Prosecutor has the responsibility for conducting investigations before the Court82 He has the duty, in order to establish the truth, to extend the investigation to cover all facts and elements relevant to an assessment of whether there is criminal responsibility under the Statute, and in doing so, to investigate both incriminating and exonerating circumstances equally83 The duty of the Prosecutor to assume this level of neutrality vis-à-vis persons accused of crimes under investigation is quite a remarkable feature of the Statute, resulting in a significant difference between the investigative powers and duties of the Prosecutor with the ICC and the investigative powers and duties typically granted to a prosecutor at the national level, since the latter usually not include the duty to conduct the investigation both charge and décharge In fact, the investigative role of the Prosecutor with the ICC is in this respect similar to the role allocated to “investigating judges” in the criminal justice 80 Art 53, 3, (a) Statute Art 53, 3, (b) Statute 82 Art 42, Statute 83 Art 54, 1, (a) Statute 81 40 system of some countries, in the sense that these investigating judges are also required to approach both the alleged facts and the persons accused of those facts in a much more objective manner than the prosecutor, and as such also bear the duty to conduct an investigation into both incriminating and exonerating circumstances equally 96 The Prosecutor has no right to freely take all investigative measures he deems appropriate or necessary He cannot at his own initiative and discretion arrest persons or summon persons to appear The Statute provides that a person can be arrested or summoned to appear only if the Pre-Trial Chamber, on the application of the Prosecutor, has issued a warrant of arrest or a summons to appear84 Next to the investigative measures of arresting persons or summoning them to appear, the Prosecutor is restricted in his investigative powers in a number of other instances, such as when an investigation presents a unique investigative opportunity85 or when the Prosecutor wishes to take specify investigative steps within the territory of a State Party without having priory secured the cooperation of that State Party in accordance with Part of the Statute86 c Decision to prosecute 97 When particular facts have been investigated by the Prosecutor, those facts will not necessarily reach the stage of prosecution It is up to the Prosecutor, upon completion of his investigation, to decide whether or not there is a sufficient basis to prosecute the investigated facts.87 98 When the Prosecutor decides not to proceed with a prosecution of certain facts that have been referred to him by a the State Party, that State Party has the right to request the Pre-Trial Chamber to review the Prosecutor’s decision not to proceed If the facts 84 Art 58 Statute Art 56 Statute 86 Art 57, 3, d Statute 87 Art 53, Statute 85 41 have been referred to the Prosecutor by the UN Security Council, the UN Security Council has the same right to request a review by the Pre-Trial Chamber Upon review of the Prosecutor’s decision not to proceed, the Pre-Trial Chamber may request the Prosecutor to reconsider his decision.88 99 In case the Prosecutor based his decision not to proceed with a prosecution on the argument that a prosecution would not serve the interests of justice, the Pre-Trial Chamber has a right to review this decision on its own initiative, in which case the Prosecutor’s decision shall become effective only if confirmed by the Pre-Trial Chamber89 d Confirmation of charges 100 If upon investigation of certain facts, the Prosecutor has decided to proceed with a prosecution, those facts will not necessarily reach the stage of trial It is up to the Pre-Trial Chamber to decide whether or not there is a sufficient basis to confirm the charges and send the prosecuted facts to a Trial Chamber for eventual trial.90 101 Before it can reach a decision, the Pre-Trial Chamber organizes a hearing at which the Prosecutor and the accused may present their case91 The Pre-Trial Chamber then decides whether or not there is sufficient evidence to establish substantial grounds to believe that the person committed the crime(s) charged Only if the Pre-Trial Chamber concludes that there is sufficient evidence in relation to a specific charge, it will confirm that charge and send it to a Trial Chamber.92 e Trial 88 Art 53, 3, (a) Statute Art 53, 3, (b) Statute 90 Art 61Statute 91 Art 61, 5-6 Statute 89 42 102 When the Pre-Trial Chamber decides to confirm charges brought by the Prosecutor, those charges will be tried by a Trial Chamber A decision of the Trial Chamber can be appealed with the Appeals Chamber93 The Prosecutor and the person convicted by the Trial Chamber are entitled to appeal on grounds of procedural error, error of fact or error of law94 On top of that, the person convicted by the Trial Chamber is entitled to appeal on “any other ground that affects the fairness or reliability of the proceedings or the decision”95 103 A sentence rendered by the Trial Chamber can be appealed by the Prosecutor and the person convicted by the Trial Chamber on the ground of disproportion between the crime and the sentence96 c) No guarantees for a strict observation of due process requirements 104 Sometimes, objection to establishment of the ICC is premised on a stated concern that proceedings before the Court will not be conducted in observance of due process requirements97 This argument, however, cannot be persuasively upheld in the face of the due process safeguards contained in the Statute 105 The Statute expressly endorses the principles of ne bis in idem98, nulla poena sine lege99, non retro-activity100 and praesumptio innocentiae101 As discussed in detail under paragraphs 75 through 103, the Statute also contains a number of provisions 92 Art 61, 7, (a) Statute Art 81-85 Statute 94 Art 81, 1, (a)-(b) Statute 95 Art 81, 1, (b), (iv) Statute 96 Art 81, 2, (a) Statute 97 Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in the War against Terrorism, Ind Int’l & Comp L Rev 159, 174-175 (1997) 98 Art 17, (b)-(c) and Art 20 Statute 99 Art 23 Statute 100 Art 24 Statute 93 43 aimed at guaranteeing the independence and impartiality of judges and members of the Office of the Prosecutor, and a set of provisions seeking to strike a balance between the respective powers and responsibilities of each of the organs of the Court The Statute further specifically sets forth the rights of an accused during investigation102, detention103 and trial104 Regarding the rights of arrested persons in the actual arrest proceedings, the Statute refers to the laws of the state arresting the accused105 106 Concededly, the set of due process safeguards contained in the Statute is not entirely identical to due process requirements governing criminal proceedings in any particular State Party This in itself, however, cannot be a convincing argument for a particular state to denounce criminal proceedings before the Court as unacceptably unfair The Statute cannot exactly reflect the rules of criminal procedure endorsed by any and all State Parties, because these rules differ from state to state Nor could it refer to rules of criminal procedure of a state that would be generally recognized to have the “best” criminal justice system in place because no state can make such claim : German “continental” rules of criminal proceedings – to name one example – are not generally thought of as inadequate in safeguarding fairness merely because they are different from the British “common law” rules – to name another one The fact of the matter is that any given set of due process safeguards is acceptable if it is adequate in guaranteeing a generally accepted level of fairness in criminal proceedings In view of the provisions referred to in the previous paragraph, there is ample argument for holding that this level of fairness will indeed be attained by the Statute 101 Art 66 Statute Art 55 Statute 103 Art 60 Statute 104 Art 67 Statute 105 Art 59, 1-2, especially 2, (b)-(c) Statute 102 44 d) Ineffective investigation due to conflicting national security interests 107 When investigating crimes referred to it, the ICC will have to rely to a substantial extent on the investigative cooperation of national criminal justice systems Therefore, the Statute provides that States Parties have a general obligation to cooperate with the Court in its investigation and prosecution of crimes106 108 One particular type of cooperation the Court may request from States Parties is the provision of records and documents, including official records and documents107 Concerns have been expressed about the appropriateness of imposing an obligation upon states to provide to the Court information if that state considers disclosure of this information to be detrimental to its national security interests108 109 Three provisions of the Statute seek to address the issue of national security interests First, the Statute provides, as a general rule, that the Court shall ensure the confidentiality of documents and information produced to it by a state, except as may be required for the investigation and proceeding described in the request109 Second, the Statute provides that the requested state may, when necessary, transmit documents or information to the Court on a confidential basis, in which case these documents or information can be used, not as evidence but only for the purpose of generating new evidence110 Third, the requested state has the right to refuse to transmit documents or information that relate to its national security111 106 Art 86 Statute Art 93, 1, (i) Statute 108 See e.g : Lara A Ballard, The Recognition and Enforcement of International Criminal Court Judgments in U.S Courts, 29 Colum Human Rights L Rev 143,205-207 (1997) 109 Art 93, 8, (a) Statute 110 Art 93, 8, (b) Statute 111 Art 93, Statute 107 45 110 If a requested state refuses to transmit documents or information to the Court on grounds related to national security, the Court may make such inference as to the existence or non-existence of a fact as may be appropriate in the circumstances112 Furthermore, if the Court concludes that the requested state, in its refusal to transmit the requested documents or information, breaches its obligation to cooperate with the Court, the Court can make a finding to that effect, and refer the matter to either the Assembly of States Parties, or, when the Security Council referred the case to the Court, to the Security Council113 111 Concerns about the effectiveness of the investigation conducted by the Court arise in cases where a state does not provide the information or documents it is requested to provide This situation may arise when the Court requests information from a State Party which, either lawfully or unlawfully, refuses to deliver the information The same situation may also arise when the Court requests information from a state which is not a State Party – and therefore under no legal obligation to provide the requested information – and decides not to cooperate with the Court Some states refusing to cooperate might be persuaded into cooperation through diplomatic or other pressure or sanctions, but this will not always be effective 112 The mere possibility that it might in some cases be impossible to conduct an effective investigation due to a refusal by a requested state to provide certain information, is in itself not an argument to away with the entire concept of the ICC The Lockerbie proceedings and the proceedings before the International Criminal Tribunal for Former Yugoslavia indicate that prosecutions by international criminal tribunals are certainly not always barred by non-cooperative states 112 113 Art 72, 7, (a), (iii) Statute Art 72, 7, (a), (ii) jo 87, Statute 46 113 Some, however, have argued that a ne bis idem problem might result from a refusal to cooperate by a state that is not a State Party114 If such a state refuses to cooperate, persons on trial before the Court may have to be acquitted for reasons of lack of evidence Nonetheless, if the information the non-cooperative state refused to provide to the Court is incriminating for the person acquitted by the Court, the same person may subsequently be tried by national criminal courts of the non-cooperative state – because the non-cooperative state is not a State Party and therefore not bound by the ne bis idem principle contained in article 20, of the Statute –, which courts can then use the incriminating information that was previously denied to the Court 114 Although this conceivable situation of double jeopardy is highly undesirable, it cannot be withheld as an argument against the establishment of the Court First, these situations of double jeopardy are fully attributable to states that have not ratified the Statute : these situations can indeed only arise in connection with states that have not ratified the Statute and also did not adopt any specific rule in their internal criminal legislation that would prevent their national criminal courts to try someone accused of a crime for which he has been acquitted by the Court It would be somehow perverse to give in to states that oppose the ICC and to away with the entire ICC project, merely because of problems created by those very same states Second, the same problem of double jeopardy already exists and would also continue to exist in the absence of the ICC : often, the acquittal of a person for certain crimes by the criminal courts of a particular state does not bar the criminal courts of another state from trying this person for the same crimes e) Jeopardizing highly delicate political balances 115 Sometimes, the argument is proffered that investigation, prosecution and trial by the ICC of certain crimes can threaten delicate political balances struck after the 114 Lara A Ballard, The Recognition and Enforcement of International Criminal Court Judgments in U.S Courts, 29 Colum Human Rights L Rev 143,204-209 (1997) 47 occurrence of those particular crimes115 A typical illustration of this problem is provided by the political situation in South Africa Post-apartheid South Africa elected to come to terms with its history of apartheid through the establishment of a Truth Commission, which was instructed to reveal the historical truth about the apartheid regime and the opposition against that regime The mission of the Truth Commission could only be accomplished if those responsible for political crimes perpetrated during the apartheid regime could be persuaded to testify before the Truth Commission, which was only possible if they were promised amnesty If an international criminal tribunal were now to investigate, prosecute and try crimes of apartheid for which the South African government has given amnesty, this would not only endanger the healing process of South Africa, but also set a discouraging precedent that would render any future collective grant of amnesty for similar purposes unreliable and hence ineffective.116 116 A similar situation could arise when a political solution for the Middle East conflict would be found The process of pacification that would be triggered and enabled by such a political solution would remain very precarious for quite some time, and prosecuting Israeli’s or Palestinians for acts committed prior to the implementation of that political solution would not be unlikely to jeopardize this delicate situation 117 However, the tension between, on the one hand, preservation of sensitive political balances defusing political conflicts and on the other hand criminal prosecution of crimes committed in the context of these political tensions prior to their defusing, is a problem that can be addressed in the context of the Statute As already pointed out above117, the Prosecutor with the ICC can decide not to proceed with the investigation or prosecution of certain facts if he believes such would not be in the interests of justice Arguably, the Prosecutor could use this right to abstain 115 A CASSESE, “On the current trends towards criminal prosecution and punishment of breaches of international humanitarian law”, European Journal of International Law 1998, (2) 5-6 116 D.P FORSYTHE, “The new International Criminal Court”, Netherlands Quarterly of Human Rights 1998, (259) 259-260 48 from investigation or prosecution in case he considers that this could jeopardize pacification efforts Specific arguments against including terrorism 118 Arguments specifically proffered against inclusion of acts of terrorism in the subject matter jurisdiction of the ICC, typically include concerns that such inclusion would : (i) overburden the Court, (ii) require the Court to decide on or even choose sides in highly sensitive political conflicts, which would undermine its position as an impartial and objective judiciary body, and (iii) trivialize the role of the Court a) The risk of overburdening the Court 119 Concerns have been expressed about the risk of overburdening the Court when acts of terror would be included in its subject matter jurisdiction118 Although inclusion of acts of terror would indeed significantly increase the workload of the Court, this increase would probably not be so sizeable as to overburden the Court The complementary nature of the Court’s jurisdiction119 can be expected to keep the number of charges of terror tried by the Court within reasonable and manageable limits 120 Moreover, inclusion of acts of terror would even be likely to benefit rather than jeopardize the functioning of the Court, in the sense that it will secure a regular inflow of cases which will enable the Court to build up a strong and trustworthy reputation This regular inflow of cases might not be present if the subject matter jurisdiction of the Court is limited to genocide, crimes against humanity and war crimes, because the incidence of these types of crimes is rather limited, and if they 117 Supra, 91 and 97 Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in the War against Terrorism, Ind Int’l & Comp L Rev 159, 177-179 (1997) 118 49 occur, they are frequently perpetrated or at least endorsed by the political leaders of a nation, which means that they can only be prosecuted if these political leaders are toppled A situation in which too little cases are referred to the Court is as undesirable as a situation in which too many cases are referred to it Including terrorism is more likely to avoid the former than produce the latter.120 b) The risk of politicizing the Court 121 Sometimes, inclusion of acts of terror is opposed based on a concern that this would politicize the Court However, the mere fact that the Court would try crimes of terror that have been committed in the context of a political conflict does not necessarily mean that it will have to render political decisions or even choose sides in a political conflict The Court can indeed be prevented from getting politicized : in order to accomplish this, it is crucial to define crimes of terror in a clear and detailed manner, which will reduce the function of the Court as much as possible to a mechanical application of the provisions of the Statute to the alleged crimes of terror that are referred to it If the political dimension of the Court’s role in trying crimes of terror can be so reduced, the ICC will provide a forum which is much more politically neutral than the forum provided by most national criminal courts currently trying crimes of terror.121 c) The risk of trivializing the role of the Court 122 In negotiations about the subject matter jurisdiction of the Court, it was agreed that the Court should address only “the most serious crimes of international 119 Infra, 123 Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in the War against Terrorism, Ind Int’l & Comp L Rev 159, 177-179 (1997) 121 Supra, 26 and following, and 58 and following 120 50 concern”122 Concerns have been expressed that including terrorism in the subject matter jurisdiction of the Court could trivialize the role of the Court However, as already pointed out above123, the Rome Diplomatic Conference specifically confirmed in a special resolution that “terrorist acts, by whomever and wherever perpetrated and whatever their forms, methods or motives, are serious crimes of concern to the international community”124 Furthermore, the argument of trivialization has become completely invalid in the face of the September 11 Events IV Amendments to the Statute required? 123 When a crime falls within the subject matter jurisdiction of the Court, the Court’s jurisdiction over that particular crime is only complementary to the jurisdiction of national criminal courts of states that can assert jurisdiction over that crime, in the sense that the Court cannot investigate, prosecute and try the crime unless the courts of that state are unable or unwilling genuinely to investigate, prosecute and try125 124 The principle of complementary jurisdiction was premised on a number of arguments First, the Statute would probably never have been adopted without this principle It is indeed hard to imagine that a majority of states would have supported the Statute if the jurisdiction of the Court would have pre-empted the jurisdiction of their own courts Second, the operations of international judiciary bodies are quite expensive, which is a managerial argument to limit the number of cases tried by the Court And third, there were concerns that dropping the 122 Art Statute; see also Rupa Bhattacharyya, Establishing a rule-of-law international criminal justice system, 31 Tex Int´l L.J 57, 97 (winter 1996) 123 Supra, 10 124 Resolution E of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, done at Rome, on 17 July 1998, http://www.un.org/law/icc/statute/finalfra.htm 125 Art and 17 Statute 51 principle of complementary jurisdiction would lead to an overburdening of the Court 125 The analysis of arguments pleading for the inclusion of acts of internal and international terror in the subject matter jurisdiction of the Court showed that inclusion would be desirable, not only to avoid impunity of terrorists who would not be prosecuted by any national criminal justice system in the absence of jurisdiction of the Court, but also to create an alternative forum for prosecution of terrorists who would otherwise be tried by national criminal courts in an undesirable political atmosphere.126 This means that in some cases the Court arguably should have jurisdiction over particular crimes of terror, even if one or more states are capable and willing genuinely to investigate, prosecute and try those crimes Granting complementary jurisdiction to the Court over crimes of terror would leave some cases outside the scope of its jurisdiction, even though it would be desirable to have them addressed by the Court 126 Nonetheless, granting exclusive jurisdiction to the Court over crimes of internal and international terror would not be the appropriate thing to For one, this idea of granting exclusive jurisdiction to the Court is very unlikely to get sufficient political support in the present day international community Furthermore, the Court, as it will be equipped and staffed pursuant to the Statute, would risk to be overburdened with charges of terror, especially when it would have exclusive jurisdiction for crimes of internal terror Also, when the Court would be given exclusive jurisdiction over crimes of terror, it would have to try every crime of internal or international terror referred to it, even if some of those crimes could also be tried by national criminal courts in a political context that does not warrant any transfer of jurisdiction to an international level 127 The balance between the jurisdictional powers of the Court and the jurisdictional powers of national criminal justice systems has to be struck somewhere in 126 Supra, 26 and following, and 58 and following 52 between a strictly exclusive and a merely complementary jurisdiction for the Court A way of allocating these powers could be – rather than to exclude states a priori from dealing with crimes of internal and international terror – to grant them jurisdiction over these crimes, subject however to a right of the Court, at its full discretion and without having to justify its decision in any way, to assert jurisdiction over any crime of terror and to pre-empt the jurisdiction of any and all States Parties over that crime This way, the Court would be given the power to assert jurisdiction over crimes of terror for which it believes that prosecution at an international level is appropriate, even if one or more states are capable and willing genuinely to investigate, prosecute and try those crimes, without however forcing the Court to get overburdened with charges of internal and international terror, and without granting to the Court exclusive jurisdiction over charges that could also be appropriately addressed on a national level V Conclusion 128 In summary, convincing arguments can be proffered in support of the inclusion of crimes of terror in the subject matter jurisdiction of the ICC Both for crimes of internal and international terror, one can conceive of situations in which jurisdiction of the Court is necessary to prevent impunity Also, in some situations, crimes of terror would not go unpunished in the absence of ICC jurisdiction, but would be prosecuted and tried in an undesirable political context, calling for a transfer of jurisdiction to the ICC Arguments that have been proffered against the inclusion of crimes of terror in the jurisdiction of the Court are not sufficiently persuasive to outweigh the benefits that would result from such inclusion The principle of complementary jurisdiction should however be reconsidered in order to fully achieve the benefits that can be achieved from that 53 .. .The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organisations at the Faculty of Law of the. .. that an international criminal court would be an adequate and even indispensable tool in an effective combat against powerful international drug cartels.1 Pursuant to the initiative of Trinidad... proceedings before the International Criminal Tribunal for Former Yugoslavia indicate that prosecutions by international criminal tribunals are certainly not always barred by non-cooperative states