Rome Statute: The International Criminal Court

The past week of our course has been filled with some fascinating philosophy of law and international law issues.  The most important thing I learned is that the Rome Conference in 1998 was a Groatian Moment, a momentous shift in international politics.  This point is made by Leila Sadat and S. Carden in the article, “The New International Criminal Court: An Uneasy Revolution.”  The Conference ended with the signing of the Rome Statue, which is the treaty that established the International Criminal Court (ICC).  Sadat and Carden argue that this was a completely new way in which international law was made, because the “Rome conference was in fact a quasi-legislative process by which the international community ‘legislated’ by a non-unanimous vote, the political legitimacy of the norms rest not on any classic theory of contract between absolute sovereigns (treaty making) but on some other grounds” (391).  To put it more simply, international law before Rome was based upon a “classic theory” of contracts, in which parties agree to being held accountable under a law by signing a treaty.  On the other hand, the ICC can prosecute individuals from nations that did not sign the Rome Statute, or in other words, it can prosecute individuals from countries that did not consent to being bound by its law.  This can only happen, however, when a case is referred to the prosecutor by the U.N. Security Council.  Regardless of the Security Council, the Rome Conference was a Groatian Moment, because it was a shift from international law being created in a contract manner (treaty making) to international law being created in a legislative manner (like criminal law).

The most interesting thing I learned this past week was in Eric Blumenson’s article, “The Challenge of a Global Standard of Justice.”  It was not a particular fact, but rather an issue.  Fast forward seven years.  The Rome Statue had entered force, and the ICC has just indicted Joseph Kony of Uganda for the use of child soldiers in his army, the Lord’s Resistance Army (LRA).  Some time after the indictment is released, Kony remains free and the LRA begins negotiating for peace with the Ugandan government but they have a non-negotiable term: the ICC is to halt its prosecution of Kony.  The ICC did not stop its prosecution, and peace with the LRA remains elusive.  A large number of Ugandans argue that the ICC should stop its prosecution in favor of peace, reconciliation, and amnesty for the LRA soldiers and leaders.  This method of resolving fighting is an Ugandan tradition and is known as “mato oput.”  There are two issues at play in this situation.  First, what should the ICC pick: peace or justice?  If they continue their prosecution in the name of justice, the LRA will not accept peace, but if the ICC ends their prosecution the LRA would be much more inclined to end the fighting.  Second, are amnesty and forgiveness for committers of war crimes, genocide, and crimes against humanity an acceptable form of justice?  The ICC clearly does not think so as it jails the perpetrators of these crimes, but other peoples, particularly those of non-Western cultures, might find other means of justice more appealing.  These are two of the most interesting and complex issues I have considered in international law, or more generally in philosophy of law, and they are critical issues the ICC has been faced with in its infancy that will determine its success in the future.

With this last issue in mind, one wonders if jailing perpetrators of crimes is the most effective method of justice, which reveals some deep legal theory questions.  The most interesting question to me is whether amnesty and forgiveness as justice, like mato oput in Uganda, are more desirable than the Western penal tradition.  Regardless of my reflections, I am very anxious to leave for the Netherlands.  After learning of these intriguing issues that face the ICC, I’m incredibly excited to be in the Hague next friday and to experience the court firsthand.

Works Cited.

Blumenson, Eric. “The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court.” Columbia Journal of Transnational Law. 44: 801-874.

Sadat, Leila Nadya, and S. Richard Carden. “The New International Criminal Court: An Uneasy Revolution.” Georgetown Law Journal. 88: 383-459.

Websters defines comprehension as “the action or capability of understanding something”. As I was heading home from celebrating Memorial Day with friends, a song came on the radio that has stirred some controversy. “Have You Forgotten?” by Darryl Worley has a catchy chorus about the War in Iraq and 911. According to some, including those who were riding in the car with me, this song should not be played on the radio because it spreads hate. This is the exact moment when the past few weeks hit me. All of a sudden I joined into the conversation arguing that the song would be breaking international laws if it were “inciting genocide”. This then got me on the topic of the International Criminal Court and the lack of United States membership. All of a sudden the car went silent and my rant about the ICC, war crimes, and genocide became the topic of interest. For the following hour and a half, conversation revolved around the ICC, its history and wars in the past century. All of a sudden, I was able to work what I have learned into a regular conversation and really apply it. It became clear that I really have comprehended everything over the past two weeks.

Focusing on the International Criminal Court and beginning to understand the court a little more was really interesting. One article that I enjoyed reading was The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court by Eric Blumenson. What I found interesting about this article and following lessons that put emphasis on the topic further was the role of the prosecutor. Blumenson says:

” The Rome Statute affords the prosecutor proprio motu power, which authorizes him to initiate an investigation or prosecution, although both decisions are subject to judicial review by the pretrial chamber and to deferral by the UN Security Council. The prosecutor was assigned this power over the objection of many delegations who wanted the ICC’s caseload limited to situations referred by state parties, the Security Council, or both. By providing for direct prosecutorial referrals, the nature of the ICC was transformed from a court that would be tethered to state interests and big-power vetoes, to a court that in theory may persue egregious situations wherever they lead. “

Article 53 of the Rome Statute defines the power stated in this passage. 

Article 53

Initiation of an Investigation

1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: 

a) The information avaibale to the Prosecutor proiveds a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

b) The case is or would be admissible under article 17; and

c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. 

The role of the Prosecutor is both controversial but game changing. Noted reasons behind powerful states not ratifying the Rome Statute, and consequentially not being a member state of the ICC, is due to the role of the Prosecutor and the lack of power given the UN and the Security Council. On the other hand, the role of the prosecutor and their ability to start an investigation is what sets the court apart from others. In my opinion, it allows the ICC to serve the international community in a more effective way. This way, politics are left out of the picture (as much as they could be). The Prosecutor is able to act independently from the power houses of the world which then holds every state responsible for their actions. Although the veto power still applies in with the Security Council, it is a small check on the power given to the prosecutor. 

What role has the Secuity Council played within the Court? Has the veto power been used in any cases in the past 10 years? 

These past two weeks have been fantastic. As I am getting ready to pack my bags, getting my passport together, and realizing that in a few shorts days I will really be in The Hague, so many things are running through my mind. A little bit of anxiety followed by so much excitement. Knowing how much I have learned in a short few days, I know that abroad will only increase that knowledge. I have such high expectations that I know will be met and probably exceeded in the following weeks. I’ll probably get lost, confused, and disoriented but I will also get closer to understanding the court and my role in it. My last blog post included a picture of the sunrise in The Hague. I am now including a picture of the city completely illuminated because that is my expectation of this experience. My hope is that by the middle of July I can fully understand the city and all that is has to offer.

This blog post marks the end of the second week of the course “Peace, Justice, and Human Rights”. Since my last post I have had the pleasure of learning about several very interesting topics. Among those topics I found natural law theory to be the most interesting. For those readers that do not know what natural law theory entails George C. Christie and Patrick H. Martin have this definition to offer: natural law theory entails, “that there is a natural order within the universe, that it is possible to ascertain the existence and nature of this order … and that human laws should and do flow” (p.8-9) from this order.

My main understanding of what natural law entails comes from an article by William R. Nifong entitled “Promises Past: Marcus Atilius Regulus and the Dialogue of Natural Law”, which we read for class discussion. Nifong disagrees with the definition of natural that is presented above as the “classic conception” of the theory. Instead of being able to identify natural law with certainty Nifong thinks that the process of identifying natural law is more like an ongoing conversation. He has this to say: “I wish to posit that numerous ancient and modern sources contemplate a process of discovery that is both dynamic and dialogic” (p. 1082). Nifong also believes that, “natural law theories must rest on faith” (p. 1085). So, according to Nifong natural law theory entails an ongoing conversation about the natural order of the universe that ultimately rests on faith.

This brings me to my question for reflection. While reading this article Nifong brings up other natural law theorists, including Hugo Grotius, Samuel Pufendorf, and Emerich de Vattel, among others. The main question I have is how do these theorists differ in respect to their formulation of natural law theory? A more specific question that I would like to know is what is each of these theorists response to the objections I just discussed, which are posed by Nifong? I think the answer to this question would paint a larger picture of what natural law theorists are saying about identifying natural law.

The last things that I would like to discuss are my expectations and feelings for what awaits. For those of you reading this that do not know exactly what I’m talking about here is a quick catch up. This course, “Peace, Justice, and Human Rights”, is a Philosophy course that deals with the intricacies of the International Criminal Court in The Hague, Netherlands. For the last two weeks we have been meeting as a class here in Michigan, but in four days we will be leaving for Netherlands to stay at Leiden University. Once there we will not only be visiting the ICC, but we will also be visiting other “bodies” of the Court.

At this point, now only a few days from boarding a plane, I feel mostly overwhelmed, but I also feel excited and uncertain. I feel overwhelmed by so much interesting information; I feel excitement for the prospect of being able to go on this adventure; and I feel uncertain about the future of this project. I have very high hopes for what lies ahead, as well as a very blurry picture of what will actually be taking place. I say this because the course has already been building its own momentum and I don’t expect it to stop, but I don’t know where it or I will go. I expect only good things and I expect this whole experience will be something that I will never forget.

Until next time,

                        Hobbes for Human Rights

References

Christie, George C., and Patrick H. Martin. Jurisprudence. 3rd ed. N.p.: Thomson West, n.d. Print.

Nifong, William R. “Promises Past: Marcus Atilius Regulus and the Dialogue of Natural Law.” Duke Law Journal 49: 1077-1126.