Learn from experts

For those interested in learning more about international criminal law, strongly recommend obtaining the upcoming 3-volume set on the subject by a prominent scholar M. Cherif Bassiouni. The publication can be ordered from Brill Publications here. He has written extensively on the issues arising in the field and was in fact the driving force behind the establishment of the International Criminal Court. For the last 30 years he has vehemently advocated for the very idea of the ICC, while many were still slumbering and/or rejecting the notion... Many scholars in the field call him the "father of international criminal law." He is currently a Professor of Law at DePaul University (see here).

Terrorism-- crime against humanity

Recently there has been much scholarly discussion about the international law definition of terrorism and exceptions to it. While understanding the complexity of possible exceptions and exemptions, I have no difficulty of defining terrorism as a crime against humanity. And a crime against humanity is defined in Article 7 of the Rome Statute of the International Criminal Court. I do not feel the need for another separate definition for an act of terror. I understand the scholars' concerns about the abuse of the term to include also acts of political dissidence or claims for self-determination. Guerrilla warfare used as a tool to defend one's country against 'occupiers' potentially is exempt. For example, I do not think the Palestinians fighting for their land or seeking self-determination are 'terrorists.' It would be absurd to claim that. But who is the target? That is the question. Essentially an act of terror is violence against civilians, not armed forces, therefore it is a crime against the whole humanity, not a particular nation. For example, the 9-11 was a crime against humanity and that is the reason that the whole world not only the US was shaken by it. The difficulty arises when during an armed conflict civilians also die because of deliberate lack of differentiation. How do you then draw the line? During the Lebanon-Israeli crisis last year the Human Rights Watch was disturbed by Israel's lack of differentiation resulting in many civilian deaths on the Lebanese side. Is that an act of terror or an unhappy by-product of war/armed conflict? After all, we all know that war means deaths not only of armed soldiers but unfortunately and most dreadfully of innocent civilians. The 9-11 and Benazir Bhutto's killing were classic acts of terror but other events are really harder to pin down. My issue is not how to define terrorism, but how to classify certain events under its column (related issues). Another problem is how to attribute terror acts to states? When certain states covertly assist various terrorist organizations by sponsoring, financing, giving them refuge on their territories, aren't they also responsible? But then isn't that a dangerous road to take? Then we would authorize ourselves to attack these states in 'preemptive self-defense'. How reasonable is that? Is that right? Should innocent civilians pay the heavy price of acts done by certain criminals?

Now another challenge is to find an appropriate international criminal forum for trying individuals/groups charged with this crime. Similar to ICTY and ICTR we need an impartial tribunal to try these folks. Then we would eliminate the whole problem/unlawfulness of Guantanamo-like detentions. I think we already have such a tribunal-- the ICC. The only problem is to convince the United States that ICC should be the appropriate place for trying these individuals. The next step for the United States is to ratify the Rome Statute and deliver these detainees to the Hague...

International law making

Since treaties are crucial in international law-making, their formation, application and interpretation is also of great significance. The law governing this process is prescribed in the Vienna Convention on the Law of Treaties (1969). Perhaps this Convention is the crux of international law because the conduct of States in relation to international treaties indirectly reveals the ‘power’ or ‘weakness’ of international law. The power or weakness of international law in its turn will dictate the world order. When I say ‘power’ I mean legal consequences for violation of law.

Several provisions should be cited here:

Article 27:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

Article 46:
(1) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

Article 19:
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation, unless:
a) the reservation is prohibited by the treaty;
b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

There is no question that States are bound by treaties they enter into. The problem is how they perform their obligations in light of their interpretation of a treaty. So, performance is very much dependent on ‘interpretation’ of a treaty in the background of internal law. Also, what symbolic power does signing of a treaty have in the absence of consequent ratification by that State? For example, the US has put his signature under many many treaties, but later failed to ratify and even tried to ‘unsign’ them. Isn’t commitment or ‘consent to be bound’ expressed in the signature? What effect does the failure of ratification have on the power of international law? The US constitutional process in treaty-making is of illustrative importance.

Article 11 states:
The consent of a State to be bound by a treaty may be ex-pressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

The US signed under the Rome Statute of the International Criminal Court on December 31, 2000, expressing its intention to be bound by the treaty creating the ICC. However, very soon a letter from the Under Secretary of State for Arms Contol and International Security, John R. Bolton to Kofi Annan said:

This is to inform you… [in connection with the Rome Statute] that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature… The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.

'Consent to be bound' and at what stage it becomes effective is important in terms of the commitment of the State in performing under the treaty. Of course, the role of internal elites is also important. A state is not an abstraction, but a directive effort of its elites, elected officials. Bill Clinton’s administration signed the ICC statute, and Bush’s administration effectively ‘unsigned’ it. How the failure to ratify this statute by the US affected the significance and further development of the ICC is a subject for further lengthy discussion. This is how elites play a crucial role in the making of international law.

(As a footnote, the US signed the Vienna Convention but has not ratified it. However, as the State Department states here, the US considers many of its provisions as customary international law.)

Dilemma?

The ICC Prosecutor Mr. Luis Moreno Ocampo has reported to the UN Security Council that Sudan is not complying with the SC resolution 1593 adopted on March 31 2005 and is not cooperating with the investigation of the Court. As he says here:

In Darfur in 2003 - 2004, we witnessed the first phase of the criminal plan coordinated by Ahmad Harun. Millions of people were forced out of their villages and into camps. In the second phase – happening right now in front of our eyes –Ahmad Harun is controlling the victims inside the camps, controlling their access to food, humanitarian aid and security; attacks against the civilians and the displaced in particular take multiple forms; women are raped; emerging local leaders are targeted; the displaced are surrounded by hostile forces; their land and homes are being occupied by new settlers. The rationale is the same as before: target civilians who could be rebel supporters.

These people who are behind these atrocities have not been arrested and are continuing their actions with impunity. Pursuant to the resolution, the case of Darfur was referred to the ICC for investigation and monitoring as early as in 2002. Sudan was expected to comply with all the measures taken by the ICC. This is an example where the UN and international tribunals sit there and wonder what is the next step, when state parties or non-state parties refuse to comply with resolutions or the prerogatives of the international humanitarian law.

ICC and Africa

ICC is busy trying war criminals in hot spots of Africa, including the DRC (Democratic Republic of Congo). It has just reported that a suspected war criminal Germain Katanga has been detained and held at the Hague. The Office of the Prosecutor has charged him with crimes against humanity and war crimes. It has been reported that he ordered a 'wipe out' of a village in the DRC, as well as forceful turnover of women into sexual slavery and children into soldiers. As a senior commander of a militia group called Force de Resistance Patriotique en Ituri, Katanga has been involved in mass killings of civilians. For a full story.
The violence that is perpetuated by the militia groups in many spots of Africa has been a major concern of the ICC, that since its inception has been a centerpiece for view of troubles in Africa... Many people call it the 'African Court.' Well, it is doing a major service to the international community. But will it have an effect on reducing the violence when the causes of it are really not addressed? The OAU (African Union) pledges 'efficient and effective' unity and promise for change. But a big part of Africa is still cloaked with hopeless poverty and violence...

International Criminal Court and Principle of Complementarity

On July 17, 1998 120 states voted to adopt the Rome Statute of the International Criminal Court. Today 104 countries are signatories of the statute. Unlike the International Court of Justice, the ICC will not hear cases between nation-states, but rather will try individuals accused of the most serious crimes under international law, such as genocide, crimes against humanity and war crimes. While the U.S. under Clinton was supportive of the ICC, the Bush administration has been antipathetical to it for understandable reasons. This has created emergence of a two-tiered system in the human rights law: signatories and non-signatories of the ICC. It is important though to examine the principle of complementarity because many non-signatories view the ICC as an 'absolute monarchy.' The jurisdiction of the ICC is complementary to the national jurisdiction of a signatory state. If the state that would ordinarily exercise jurisdiction is unable or 'unwilling' to proceed in a given case, only then can the ICC step in. This is elaborated in Article 17 of the Rome Statute. What matters is a bona fide effort to prosecute for those crimes named in the Statute. This of course implies that states should implement the Rome Statute into their domestic laws so that they can exercise jurisdiction rather than surrender their national to the ICC. This also means that the ICC necessarily needs national cooperation which would in fact improve compliance with international law. So, it is clear those who do not want to ratify the Rome Statute are first of all skeptical of international law and do not want to make it part of their domestic legal process. This is apparent when looking at the list of countries who have joined. Those who are not joining including the U.S. will be outsiders to genuine international law processes that can in fact put a halt to such crimes as genocides and war crimes. If the U.S. wants to lead the world, it must become a nurturer and gardener for international criminal law.