THE META-JUDICIAL EFFECTS OF THE PRONOUNCEMENTS DELIVERED BY THE ICC: INTERNATIONAL HUMAN RIGHTS STANDARDS AND STATE RESPONSIBILITY
Arturo LAURENT*
SUMMARY
I. Preliminary comments. II. International obligations of the State. III. Decisions on admissibility. IV. State responsibility.
I. PRELIMINARY COMMENTS
On July 17 2003, amidst the celebration of the ‘World Day for International Justice’ promoted by activists to commemorate the anniversary of the adoption of the International Criminal Court Statute and in "recognition of the evolving system of international justice",1 the recently appointed Prosecutor Luis Moreno Ocampo referred to the Democratic Republic of Congo (DRC) as the first "situation" to be "followed closely" by that Office.2 The decision came after 499 communications proposing a myriad of cases —submitted to the Office of the Prosecutor (OTP) between July 2002 and July 2003— had been analysed in a record time of just one month since the Prosecutor assumed his position and even before the Office had been fully staffed.3
It is evident that the OTP was under significant pressure from human rights activists and international NGOs to start its activities as soon as possible. It was also in desperate need of undertaking as a ‘debut’ investigation a high-profile case that would offer the critics little possibility of being manifestly questioned or disputed in terms of the crimes that could be under the jurisdictional scope of the Court. Simultaneously, it also needed a low-profile case in terms of the suspected individuals to be investigated. A case involving predominantly non-State actors was obviously to be preferred at such an early stage, avoiding the political implications of the investigation or prosecution of State officials.
Consequently, the OTP selected the conflict in Ituri, Democratic Republic of Congo, "as the most urgent situation to be followed".4 Since the ability of the DRC to deal with the occurrence of the alleged crimes was also inevitably to be under scrutiny and eventually assessed, the OTP immediately stated that for legal and security reasons "the identity of individuals who have raised specific allegations or that of persons against whom such allegations have been made",5 would not be revealed.
It was considered that "the protection of the identity of the authors of the communications and of the alleged perpetrators at this early stage is [was] required by the Prosecutor’s fundamental duty to observe the law, seek the truth, respect the victims and uphold the rights of those allegedly responsible".6 The identity of the State presumed not to be in compliance with its international obligation to prosecute or to conduct fair proceedings, and the specific conflict that was going to be the object of the scrutiny of the OTP were indiscriminately aired, obviously not being considered to be in any way sensitive information.
In the proceedings that have taken place before the ICC so far, political factors have inevitably been present.7 Amidst it all, in a political-diplomatic manoeuvre, the UN has stressed the importance of respecting the sovereignty, territorial integrity and political independence of the DRC and other States involved in the conflict.8 It was also stated that from the stage of transitional justice in the DRC, compliance with the duty to protect human rights, the establishment of a State based on the rule of law and an independent judiciary in order to end impunity, are expected.9 The democratisation process to take place in the next years is not going to be easy for either the DRC or the international community already involved.10 Consequently, any intervention of the ICC must be permeated with extreme political prudence and legal caution.
However, after 7 months of keeping (‘following’) that situation on its agenda, and fortunately for the ICC, the Ugandan Government apparently solved the problematic decision of selecting an inaugural case. In December 2003, President Yoweri Museveni of Uganda, in his character of head of State, referred the internal situation concerning the activities of the Lord’s Resistance Army to the OTP.11 As a result, the Prosecutor of the ICC declared the involvement of that Office in order to investigate the allegations regarding the crimes committed.12 This situation offered the Court a high-profile case in terms of the alleged crimes committed that involved non-State actors and that had been referred by the State itself, significantly alleviating the pressure on the judicial body.13
Considering all the premises involved, it would be naïve to expect a dichotomy between politics and any other processes taking place at the international level. They simply cannot be isolated or separated, especially in matters where national and inter-State economic, social, ethnic and cultural factors are involved. In this sense, politics have been accurately described as an "undeniable reality –especially at the international level—, where political will is often the only force capable of enforcing the law".14 Apart from law-enforcement mechanisms; diplomatic, economic or judicial proceedings happening in the international forum are clearly also susceptible to being influenced by political factors. In relation to international criminal law however, any radical politicisation of the ICC’s operational system will be particularly delicate due to the evident impact its decisions will have not only on inter-State relations but also on the internal affairs of the State. This ambivalence of the functions of the ICC confirms its double intrinsic nature as a political-judicial body, from which it cannot escape. Both facets must be clearly delineated and operate in accordance with the stages of the different type of proceedings that can be conducted before the Court.
The effects produced by the Court’s decisions are likely to be manifested in two main legal areas, both bearing vital importance to the success of the system of international criminal law: human rights protection and State responsibility.15 Regarding human rights, the Preamble of the Charter of the United Nations states as a core aim of the Organisation, the reaffirmation of human rights —which are based on the dignity of the human person— along with the achievement of peace, justice and the promotion of social progress and better standards of life. After the adoption of the Charter, as part of the unstoppable movement in favour of international legal development and a stronger protection of the individual within domestic jurisdictions, a vast number of treaties and international conventions were adopted by the majority of States, undertaking the compromise to respect individual guarantees.
The spectrum of civil and political rights contained in such documents is broad, and even though there is no theoretical differentiation made between one or any other right within the text of the conventions, while some of them are non-derogable some others do allow derogations, restrictions or suspensions.16 Consequently, from a practical perspective, not all fundamental rights have been ranked as equal in terms of their degree of importance.17 Regardless of the implied differentiation that is contained in the text of the human rights documents, it is imperative to reappraise any practical categorisation that may diminish the importance of some of the rights, especially when the national and international competences are preparing to enter a new stage of interaction in the area of criminal law.
The international legal framework that covers criminal law and the rules of fair trial do not belong to the non-derogable type, yet they ought to be seen as central to the human rights system, if simply because of the high values they aim to protect and their role in procuring or ensuring compliance with other rights. It is mainly the ICCPR and both the European and American Conventions on human rights that deal with these guarantees, after they were incorporated, vaguely and generally, into the text of the 1948 Universal Declaration of Human Rights.18
The general duty to promote, respect and enforce individual guarantees has been recognized and accepted by States as an unquestionable aspect of international law, according not only to positive law but also to the opinio juris consistently expressed and reaffirmed by States.19 Such conviction is demonstrated by the eloquent pro-human rights political discourse and their adherence to international human rights instruments.20 Furthermore, it is sustained that the international commitment to protect human rights is an obligation erga omnes.21 This position inevitably leads to the question of the responsibilities of the State regarding the rest of the members of the international community, and its obligations towards the individuals of the social group.
Turning to the issue of State responsibility, due to the threshold for the legitimate intervention of the ICC, the decisions on admissibility rendered by it will imply per se that the State is in breach of its international obligations on human rights. The State, first and foremost, is the entity responsible for ensuring good governance, administration of justice and respect for all the procedural guarantees regarding the protection of trial fairness. The perspective is twofold. Firstly, the State must investigate and prosecute those offences that have been defined and classified as crimes by the national criminal legislation.22 Secondly, in doing so, the State must ensure fair trial guarantees, designed to protect not only the defendant, but also the victim/s and the social group. If the ICC is to intervene and prosecute a case, it is because the standards set by either of such obligations have not been met accordingly by the domestic legal system. Hence the complementarity regime of the Court, substituting the obsolete system of concurrent jurisdiction with which the ad hoc international tribunals are empowered, and through which the latter are entitled to prosecute and decide a case if a request to the national courts to defer to the international competence is considered appropriate, even if the domestic administrative authorities or the judiciary power are operating adequately.23
In the current state of affairs (in which different branches of the law are converging and becoming increasingly interdependent with one another), international human rights may be influenced by the activity of the ICC on the one hand, and international human rights organs on the other (e.g. Inter-American Court of Human Rights, European Court of Human Rights). The effects of such inter-dependence and the consequent responsibility they may convey are an issue that has not been explored exhaustively. In addition, academic attention and legal debate has focused on other areas, none of them less important (e.g. victimology, definitions of international crimes or the elements of the concept of aggression). The lack of extensive literature on these topics suggests that they were not amply discussed or taken into consideration when the Statute was being drafted and later signed and ratified. The force of international justice, now even commemorated as a ‘World Day’, was probably too strong and didn’t give pause for a detailed assessment of the legal implications that even an international judicial system based on complementarity could present. Despite the lacunae and omissions in the theoretical framework of the ICC Statute, the practice of the Court has now to be reconciled with the national affairs of the State and compliance with its international commitments, avoiding an unnecessary —not to mention harmful— legal or political burden.
The repercussions can materialise not only in the ambit of international criminal law, but also in inter-State relations, democratisation processes and national sustainable development.24 The possibility that either a defendant or the victims of the crime, or even a third State, may be willing to initiate actions against the violating State due precisely to the non-compliance of the regime’s obligations, has to be taken into consideration as part of this emerging system of international criminal law.25
Notwithstanding the fact the ICC Statute entered into force on 1st July 2002, the Court has not thus far exercised jurisdiction over any case. Consequently, no case-law is yet available, theorisation by deduction on the possible impact of its future procedures being the basis for legal analysis. Since the core criminal substantive definitions and procedural rules are now in force, it is possible to foresee with a high degree of accuracy the effects of the decisions. Therefore, the extra-judicial implications beyond the exclusive determination of criminal responsibility of the individual —the primary function of the ICC as a judicial organ— will be explored hereafter, clarifying whether the exercise of jurisdiction will, in any way and as a collateral effect, put the State itself on trial, even if from a practical, rather than a formal perspective. If the effects of the exercise of competence by the Court transcends the sole legal sphere of the defendant affecting State’s affairs, the objective of the present author is to elaborate guidelines for a better interpretation of the legal provisions set for the Court that will strengthen the inherent nature of the ICC, at the same time maximising the protection of the legal, political and judicial integrity of the State.
Therefore, Part I explores the international status of the legal framework surrounding the obligations of the State regarding the adequate administration of justice and effective enforcement of human rights standards. Part II presents an assessment of the impact of the decisions on admissibility delivered by the ICC, and the different factors affecting the proceedings such as politicisation and case selectivity. Finally, Part III examines the diverse circumstances conveying the responsibility of the State generated by the failure to comply with its international obligations and the institutional inter-dependence between the ICC and international human rights institutions.
II. INTERNATIONAL OBLIGATIONS OF THE STATE
The decisions by which the ICC admits a case for investigation and eventual prosecution will inevitably, per se, have an impact (including legal and political repercussions) on those States involved in the international proceedings.26 To assess such effects, it is necessary to delimit the prerogatives of the Court regarding its ambit of competence and, simultaneously, to establish the extent of the Government’s obligations imposed by the legal scope of the international protective human rights system regarding criminal proceedings. The clarification of both hypotheses is essential, since not all of the rights belonging to the international human rights framework are related to the conditions for which, if infringed, the ICC could disqualify the national regime and declare a case admissible.
1. Ambit of competence of the ICC
It is the extent to which the standards of fair trial are enforced by the national system that will primordially be assessed to determine if the ICC is to take action, and not only the fact that crimes within its jurisdiction have been committed. According to the provisions finally included in the ICC Statute, the admission of a case is conditional upon certain requisites that can derive from two different situations:
a) Irregular national proceedings. The Court’s admissibility powers would be triggered if any irregularities are committed during the national proceedings in the form of unwillingness of the State to act under the rule of law and in accordance with the guarantees covered by the principle of fair trial (specifically the right to be tried by an independent and impartial tribunal and without undue delay).27 The preconditions for this case of admissibility are the prior existence of proceedings (concluded or in process), conducted before the domestic authorities and incurring in any of the premises specified by Article 17(2) of the ICC Statute (i.e. purpose of shielding the offender, unjustified delay, lack of independence or impartiality). The unwillingness of the State to procure effective justice according to the international standards contained in the provision of fair trial affects not only the defendant, but also the victim/s and the social group. Such irregularities legitimise the involvement of the ICC as a judicial organ.
In liberal States, the right to a fair trial and all it embraces is considered to represent one of the core concepts of criminal law theory:28 it sets the guidelines to observe the obligations over competence issues, independence, impartiality, due process, legal remedies and non bis in idem. Furthermore, due process has been seen as the basis for legalism29 and as the "foundation stone for ‘substantive protection’ against state power".30 Fair trial rights are so important that the protection of human rights begins with their effective enforcement.31 Democratic societies also depend on procedural fairness as "crucial for the realization of justice".32 In sum, "respect for the human being must be at the centre of any criminal procedure".33
As understood and applied in the present case, a strictu sensu interpretation of fair trial includes all these guarantees, which to a greater or lesser degree have an influence on the main objective of the norm: independence of the judicial organ and impartiality in the determination of criminal responsibility.
b) Absence of proceedings. A latu sensu conception of full procedural guarantees encompasses the conducting of proceedings. The ultimate form of transgression of international legal standards materialises when procurement of justice is completely denied. The inability of the State to carry out criminal proceedings (investigation or prosecution) ‘due to a total or substantial collapse or unavailability of its national judicial system’, will certainly put a case within the competence of the international criminal tribunal (Article 17(3) ICC Statute).
The absence of administrative or judicial proceedings when crimes have been committed translates as impunity and denotes the incapacity of the State concerned to uphold the rule of law. Addressing both irregularities are precisely the reasons for which the Court was specifically created: eradication of impunity by conducting judicial proceedings when national legal systems have failed to act.
In this sense, the European Court of Human Rights has concluded that "the principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘recognised’ fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) [fair trial] must be read in the light of these principles".34
In a strict interpretation, fair trial is linked to the procedural rules that must be observed during the determination of criminal charges brought against that individual who is suspected of having committed a crime. Thus, from a more general perspective, fair trial involves much more. It represents the inherent right of effective remedy that belongs to the victim/s and the social group as a whole.35 And effective remedy derives from the major premise of enforcement of the rule of law and good governance. Impunity, not as a consequence of an illegitimate act of shielding, but originating from the abstention to initiate or conduct criminal proceedings at all, flagrantly violates the right to effective protection or remedy to be provided by a national authority or tribunal and possessed by those whose rights and freedoms have been violated. This guarantee is so vital for the whole structure of the international system of human rights, that it does not accept reservations and it is equally considered to be a non-derogable provision.
On reservations, the Human Rights Committee has established that "a state could not make a reservation to article 2, paragraph 3 [right to effective remedy], of the Covenant, indicating that it intends to provide no remedies for human rights violations. Guarantees such as these are an integral part of the structure of the Covenant and underpin its efficacy".36 The Committee has further concluded that even if Article 2(3) is not included in the list of non-derogable rights mentioned in Article 4(2), "it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective".37
Enforcing the right to legal remedy and securing fair trial during the proceedings, are two conceptual stages inevitably preceded by the possibility to access judicial instances as a sine qua non requisite that will enhance compliance of international standards on human rights. According to the European Court of Human Rights, "it would be inconceivable… that Article 6 para. 1 (art. 6-1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantee, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings".38 Consequently, the right to access a court —in this case criminal tribunals— "is a constituent element of the right to a fair trial",39 related to public order.
The Inter-American Court of Human Rights has concluded that "the State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction".40 Furthermore, the Inter-American Court has declared "any situation that constitutes a denial of justice or when the alleged victim/s is denied access to a judicial remedy, would be in violation of the Convention".41 Therefore, access to courts, the right to an effective remedy and fair trial, are three aspects intimately related to each other and closely interconnected to the rule of law in a democratic society. The Inter-American Court has referred to this interdependence as follows:
The concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.42
To summarize, non-compliance with the international standard of fair trial not only originates in the irregularities committed during the proceedings once they have started, but also in the total absence of such proceedings. In both cases, establishing the responsibility of the offender is denied and the detriment suffered by the victim/s and the social group is not addressed. This conceptualisation is mainly founded on the fact that "...the obligation under the Covenant [Article 2 ICCPR] is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction".43
2. State obligations imposed by international human rights standards
It is of the utmost importance to unequivocally establish the character of the obligations imposed on the State by international human rights standards regarding criminal proceedings for two reasons. Firstly, as it has been already specified, failure to comply with such obligations will be the parameter/threshold by which the ICC will determine the admissibility of a case. Secondly, since such obligations belong to the non-derogable category and withdrawal from the commitments is not possible, the State will not be able to circumvent its responsibilities towards the individual, the social group and the international community.44
According to treaty law, fair trial rights are contained in Articles 14 ICCPR, 6 ECHR and 8 ACHR. Apart from the inclusion of the right in the text of core human rights treaties, its relevance and inalienability has been strengthened by other more recent instruments evidencing the serious concern of the international community to ensure the right. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (approved by a General Assembly Resolution in 1988)45 has been considered "an authoritative present-day interpretation of the relevant provisions of the Covenant on Civil and Political Rights".46 The inter-State commitment manifested is to enforce a permanent effective control exercised by the national authorities to guarantee at all times the rule of law and to contribute to the protection of human rights.
The core international legal documents do not expressly include the right to a fair trial in the lists of non-derogable rights.47 However, this may be just a technicality, because due process rights are "fundamental and indispensable for ensuring any other right".48 Legal interpretations demonstrate an opinio juris in favour of considering them as non-derogable: "governments should never restrict derogable rights in such a way that the enjoyment of non-derogable rights by the individual becomes futile".49 In practice, it would be impossible to imagine a State restricting criminal procedure guarantees without affecting the exact observance of those that are non-derogable, consequently ascribing them, de facto, with the same characteristic of non-derogability. In this sense, it is significant that in cases of public emergency threatening the life and existence of the State, only few Governments have exceptionally considered necessary to derogate from Article 14 of the ICCPR as a measure to restore the rule of law.50 The vast majority of States have considered the enforcement of the guarantee of fair trial is not incompatible with the maintenance and restoration of public order.51
International institutions have also made authoritative pronouncements on the non-derogable character of the provision of fair trial. The HRC considers
...inherent in the protection of rights explicitly recognized as non-derogable in article 4, paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15.52
For the HRC "the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency".53
In different Advisory Opinions, the Inter-American Court of Human Rights has declared, "essential judicial guarantees for the protection of the non-derogable rights may not be suspended".54 Enforcing this criterion, the regional judicial organ sustains that not even the declaration of a state of emergency can "entail the suppression or ineffectiveness of the judicial guarantees that the Convention [ACHR] requires the States Parties to establish for the protection of the rights not subject to derogation or suspension by the state of emergency".55 The principles of due process of law (Article 8 ACHR) "should be understood as applicable, in the main, to all the judicial guarantees referred to in the American Convention, even during a suspension governed by Article 27 [states of exception] of the Convention".56
In this sense, it is significant that according to Article 8(2) (c) (iv) of the ICC Statute —applicable to armed conflicts not of an international character— one of the meanings of the definition of war crimes includes: "The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable".57
For Alston, the requirements that any given claim would have to comply with in order to qualify as a human right in terms of international law, include the eligibility "for recognition on the grounds that it is an interpretation of UN Charter obligations, a reflection of customary law rules or a formulation that is declaratory of general principle of law".58 Fair trial is of course a fully recognised human right. It has derived from the core principles of the UN Charter, is included in every international document related to human rights of the first generation (UDHR, ICCPR, ECHR, ACHR and ACHPR) and it is a reflection of customary law.59
A total of 149 States of the international community are member parties to the ICCPR, 44 to the regional European treaty (ECHR), and 25 to the regional treaty of the OAS (ACHR).60 Such adherence demonstrates the conviction of States to enforce and abide at the domestic level with international human rights provisions, which are "meant to be meta-positive rights, unchangeable by government".61
Irrefutability of human rights protection is such that the Human Rights Committee has concluded that the ICCPR does not include any provision for its denunciation or withdrawal, and, because of its own nature, it is clear that such prerogatives are not implied.62 Therefore, the Committee "has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant [ICCPR], such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant".63
3. Internationalisation of fair trial standards
The fair trial provision has been, unequivocally, incorporated into the legal framework of international criminal tribunals (ICTY, ICTR and ICC). The internationalisation of the provision, expected to grant the highest level of protection to those individuals to be tried by the ICC, has been analysed in detail and eloquently explained by Safferling. He supports the extension of human rights legislation beyond the ‘traditional’ boundaries of the State to the international realm of criminal law, by making reference to: a) the existing jurisdictional analogy between national courts and an international criminal tribunal; b) the requirement of international jurisdictional organs to be subject to the same standards imposed by human rights on the domestic judicial authorities, since the competence of the ICC derives from the transference made by States; c) human rights designed to be limitations on infringing powers, whether exercised by a national or an international institution, and d) the intrinsic nature of human rights protects the individual regardless of the authorities that are involved.64
The obligation of the State is not only towards the subjects that benefit from the protection of rights within the domestic jurisdiction, but also towards the international community as a consequence of the internationalisation of criminal law. This position has been shared in the recent past by both defence lawyers and the judges of international judicial organs alike. When the appeal on jurisdiction was filed in the Tadi? case, it was argued by the Appellant that the minimum standards set by the ICCPR, and the American and European conventions on human rights regarding fair trial and due process, were also applicable "requirements in international law for the administration of criminal justice".65
The Appeals Chamber considered that for the ICTY "to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments".66
Also, supporting the trend of internationalisation of human rights law, Judge Sidwha, in his Separate Opinion on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadi? case, argued that:
Certain articles of the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights and of the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984) contain certain important provisions which are binding on all States, from which they cannot derogate even in times of the gravest emergency, and one would imagine that such of them that ensure a fair trial and protection of the rights of the accused bound the Security Council to ensure their non-violation in the Statute of the International Tribunal which they drafted.67
The Magistrate concluded that international human rights provisions bear such importance that any international tribunal created and established according to the legislative framework of the United Nations [ICTY], is necessarily bound by them. Hence, any other international judicial organ would also be obliged to comply with such standards [ICC].
In this sense, on July 3 2001, during the initial appearance of Mr. Slobodan Milosevic before the ICTY, Judge Richard May clearly declared that the defendant would "be accorded the full rights of the accused according to international law and the full protections of international law and the Statute".68 The statement is not only recognising the rights of the accused set by international standards —even if originally they may have been intended for compliance at the domestic level only— but also the fact that such guarantees are now part of an international system of criminal law, and therefore, ought to be applied accordingly by an international judicial organ, in this particular case, the ICTY.
Consistent with such determination and since ensuring a fair trial was a major concern of the ICTY, in view that Mr. Milosevic has consistently refused to appoint any counsel to represent him, the Registrar of the Court —notwithstanding the recognition of the right of the accused to represent himself—69 designated a Counsel as amicus curiae.70 Eventually, on September 2 2004, the Trial Chamber instructed the Registrar of the ICTY to appoint Counsel for the defendant.71
4. Repercussions on the State for non-compliance with fair trial obligations
Apart from legitimising the admissibility decisions of the ICC by which the powers of investigation and prosecution of the international organ are triggered, non-compliance with international obligations regarding fair trial will inevitably generate diverse collateral effects affecting the State. Since the State is bound to comply with the procedural guarantees of due process, non-compliance implies a breach of its international obligations.
According to a recent interpretative guideline on fair trial made by the Human Rights Committee, "the enumeration of non-derogable provisions in article 4 [ICCPR] is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law".72 Such a list (Article 4(2) ICCPR) "is to be seen partly as recognition of the peremptory nature of some fundamental rights ensured in treaty form in the Covenant"73 although some other provisions were included as non-derogable "because it can never become necessary to derogate from these rights during a state of emergency".74 Even more importantly, the "category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance... by deviating from fundamental principles of fair trial".75
In conclusion, international law has adopted a cohesive legal interpretation of the provisions regarding human rights protection and procedural guarantees, supporting the criterion that fair trial provisions should be considered as norms of jus cogens.76 Therefore, if such provisions are not complied with and the minimum standards set by international criminal law as included in the ICC Statute (e.g. independence, impartiality or prohibition of undue delay) are not respected by the State, a criminal case would legitimately become admissible. Consequently, the State in breach of international obligations will bear responsibility —not for the international crimes committed and for which the individual offender would be held accountable— but for the failure to comply with its international commitments.
The political advancement from absolutism to separation of powers and a social arrangement based on democratic values, not only contributed but also demanded the evolution of criminal law from retribution to restitution. In legal literature, such historical processes have been commented by authors such as Meron, who affirms, "jus cogens and public order of the international community should be allowed to develop gradually through international practice and growing consensus".77 Hence, the strengthening of international human rights guarantees and their interaction with the ICC legal framework must be seen precisely as the culmination of gradual —even if hurried— development of State practice and legal consensus.78
The possibility to make the State "accountable to the international community and to other States for the non-compliance with his obligations towards his own subjects"79 is rightly perceived by Kooijmans as a characteristic of the internationalisation of human rights. The international character involving the relationship between States and the individuals subject to their jurisdiction renders the duty to respect the legal framework on human rights as a total and permanent one, creating ineluctable obligations to the State in case of failure to comply.
The Institute of International Law —according to its resolution on The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States (1989)—80 has emphasised the character erga omnes inherent in the obligations to respect human rights. Article 1 reads as follows:
Human rights are a direct expression of the dignity of the human person. The obligation of States to ensure their observance derives from the recognition of this dignity as proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights. This international obligation, as expressed by the International Court of Justice, is erga omnes; it is incumbent upon every State in relation to the international community as a whole, and every State has the legal interest in the protection of human rights. The obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of human rights throughout the world.81
The provision does not attribute the erga omnes characteristic only to specific rights, "but to the general obligation to ensure respect for human rights".82 Finally, the Human Rights Committee has expressed in a General Comment regarding the scope of obligations contained in the ICCPR, that "every State Party has a legal interest in the performance by every other State Party of its obligations".83 This means that the provisions of the Covenant are "binding on every State Party as a whole"84 so the "obligation to respect and ensure the guarantees in the Covenant has immediate effect for all State Parties".85
To summarize, due to the evolution of the human rights discourse, the state of current legislation and the expressed opinio juris, both legal and academic analysis have reaffirmed the character erga omnes of the obligation to promote and observe these rights.
5. Final comments
Regarding international criminal law, international courts have not been given the opportunity to evolve systematically since they have been created on an ad hoc basis, until recently the permanency of an international criminal tribunal became a reality. Similarly, regarding the evolution and leap of human rights from the domestic to the international sphere, Alston has argued that
...the rights in the Universal Declaration were, for the most part, if not entirely, claims which had long been made at the national level and which, in many instances, had been formally recognized as rights in national constitutions or other legislation. By the time they reached the General Assembly, such claims were reasonably mature in terms of their transformation into law, having already passed through a relatively demanding, although in some aspects informal, filter system. By contrast, many of the claims now being asserted as rights were conceived directly in international forums and have not had the benefit of careful prior scrutiny at the national level.86
The last fifty years have produced evidence both at the theoretical and practical level that reaffirms the indisputable obligation to ensure human rights standards regarding fair trial in criminal proceedings, that compliance with such a right as a treaty obligation is inexcusable and that it has leapt to the international realm of criminal law.
In the area of human rights, "the body of judicial guarantees given in Article 14 of the International Covenant on Civil and Political Rights has evolved gradually",87 to the point that other procedural judicial guarantees of the same character have been added "to protect the individual and see justice done".88 As a result, the catalogue of human rights provisions has been constantly expanded. The reason is the inherent dynamics of human rights and social development that have obliged the system to proclaim new rights. As desirable as these modifications and improvements are, the risk of compromising the credibility and coherency of international criminal law must be minimised. The ideal way is by preserving the correct balance between legal definitions and the necessities of an evolving society, avoiding radicalisms that would lead to legal absurdity and exaggerations.89
III. DECISIONS ON ADMISSIBILITY
For Michail Wladimiroff "the challenge of an international criminal court is to bring justice both to the victims and to the accused by administering uncompromised fair justice where national bodies may fail to do so. A failure to show an indisputable impartiality to the conflict and to meet the highest standard of fairness within a trial will only fuel new hatred and further retaliation, if not more public outcry for convictions at any costs".90 To avoid such harmful effects, the ICC has to be extremely careful about how the internal proceedings that will lead to the exercise of its competence will be conducted. To secure positive results, compliance with the following conditions is suggested:
Firstly, since the Court is only about adjudicating individual criminal responsibility, it must remain completely neutral to any internal or external conflict that may be affecting the State’s regime (and consequently impeding the correct administration of justice). Secondly, there must be absolutely no doubts about the failure or incapacity of the national judicial system to conduct adequate proceedings to prosecute those suspected of being criminally responsible.91 Hence, a detailed preliminary examination or investigation must be conducted. Thirdly, once a case is admitted, the prosecution before the ICC has to be conducted in a pristine way if fair criminal justice is to be achieved.92
Observance of the first two premises (neutrality and a detailed preliminary examination or investigation) in order to achieve the third one (fair criminal justice) will depend on the immunity of the Court to any kind of politicisation or external influence and the application of a correct and unbiased criteria for case selection. These conditions have to be taken into account as an inevitable component of the complex system of international criminal law.
1. Politicisation
For Tallgren, "the settling of international law is that of diplomatic conferences, convention-making by consensus and autopoetic interpretation of law".93 This statement acknowledges that interpretation of the law is, as it will continue to be, subject not only to legal, but also to broader meta-juridical influences. In such context, international criminal law is but the manner in which "international law, international lawyers and international decision-makers have recently taken tools out of the criminal law toolbox and started to apply them to the international framework".94 While this is so, the ideological concepts are being interpreted by decision-makers belonging to different legal backgrounds, and whom support diverse political convictions consequently imprinting some personal poetic touch.
This ‘interpretative’ factor about the powers and prerogatives of the Court is what the Government of the United States of America considers to be a major concern. The possible politicisation of the ICC as a judicial organ is one of the core arguments presented to the international opinion opposing it.95 While many influential NGOs have openly criticized the American policy, many Governments around the world have been more cautious when stating views that may be interpreted as a disqualification of the ICC, but not without good reasons. Organisations like Human Rights Watch (HRW) have expressed in a rather radical way that "any state that has not signed the Rome Statute or has repudiated its signature, is unwilling to commit to prosecuting the crimes covered by the Rome Statute, or to subject its prosecutions to ICC scrutiny to determine whether they are conducted in good faith".96 This being a widespread vision amongst over-enthusiastic human rights activists, must be rectified according to the following criteria:
a) The refusal to sign or ratify the ICC Statute by no means implies per se that the State is —or will be— unwilling to investigate or prosecute the grave crimes defined by the treaty. To think so is prejudicial and will automatically disqualify not only the national judiciary system but also the whole structure of political power, even before any irregularity or case of corruption actually materialises.
The consequences of signing and ratifying the document are profound and may affect in more than one way the legal status of any given State once the Court becomes fully operational. The impact of the adherence must then be carefully evaluated and the international instances must be respectful of the national legislative framework. The expression of abstention to adhere to the treaty by a State must not be interpreted as a denial of the international standards of criminal law or international human rights.97 Negative interpretations beyond the exclusive legal context are damaging in the ambit of international relations.98
b) The transparency that must be imbedded in the judicial process does not equal or translate into an unlimited power of scrutiny by the ICC over the national legal procedures. In order to be able to intervene, the ICC must have enough uncontroversial elements that support the presumption that the domestic procedures are neither impartial or independent, that they are or have been conducted to protect the offender; or that the State is unable to enforce due process of law. The role of the ICC is definitely not one of ‘overseer’ over local courts as has been daringly proposed by the human rights organisation.99 When the situation so requires, the monitoring or follow-up of a case by the ICC must be conducted in specific circumstances, once there has been an assessment of the probable commission of international crimes and there is also unequivocal evidence that the Government does not intend to adhere to its international obligations in the area of criminal justice.100
The powers of the ICC may only be triggered in extreme circumstances when there is no doubt at all that at least one of the admissibility hypotheses included in the Statute is present.101 Therefore, any legal procedure will not necessarily have to be open to the ‘scrutiny’ of the Tribunal. If the Court considers that there are enough grounds to get involved, it will have to make a request for information to the States/s concerned, following the adequate diplomatic channels and according to the rules of co-operation set in the Statute itself.102
The issue of the politicisation of the Court is also a matter of concern for the leaders of organisations like the United Nations. Secretary-General Kofi Annan, while addressing the Assembly of States Parties to the ICC, expressed his preoccupation if the Court deviates from its ideals in the following terms: "Above all, the independence, impartiality and the integrity of the Court must be preserved. The ICC is not —and must never become— an organ for political witch hunting".103
With human rights activists making unsupported but media-attracting declarations and considering that the "whole point of the ICC is never to trust unverified national pledges to bring offenders to justice",104 it is not surprising that States are cautiously approaching the international instrument, that even before its operation is starting to show signs of political controversy. Even further, amidst this polemical debate, on May 6 2002 the United States Government –in what has been qualified as an "unprecedented diplomatic maneuver" as part of a "comprehensive U.S. campaign to undermine the ICC"105—withdrew its signature from the treaty previously deposited on 31 December 2000—.106
The response from human rights NGOs and activists was far from what can be considered diplomatic. Michael Posner, Executive Director of the Lawyers Committee for Human Rights, stated that "by un-signing, the U.S. is [was] abdicating its role as a world leader on justice and the promotion of the rule of law".107 In the same tone, HRW declared that the Bush Administration was "putting itself on the wrong side of history".108
Arguments forwarded by the U.S. Government have focused on the possibility of American personnel participating in UN peacekeeping operations being prosecuted as a result of political persecution. Due to its hegemonic military power and political influence, the U.S. participates in 9 of all 14 current peacekeeping operations around the world, in Middle East, Europe, Asia and Africa.109 In the case of the current Kosovar mission [and recently terminated (31 December 2002) Bosnia Herzegovina mission (UNMIBH)], the American contingent is significant, and both countries —Yugoslavia and Bosnia Herzegovina— have ratified, as many others have done, the ICC treaty.110 That means that the U.S. personnel could be subject to the ICC jurisdiction.111
What could happen next might be predictable. Even if the risk of American personnel committing the crimes defined by the Statute in the scale and seriousness required to trigger the Court’s jurisdiction is fairly low,112 in practice, the possibility of attempts being made to involve the international criminal tribunal in prosecutions can be regarded as high. This is why, the U.S. Government in its character of permanent member of the UN Security Council, exercised its power of veto when —on the same day the ICC treaty entered into force (July 1 2002)— the SC was due to renew a routine six-month extension of the mandate authorizing the peacekeeping mission in Bosnia Herzegovina. The U.S. Ambassador John Negroponte declared that even if the veto was exercised with reluctance, the American administration was not ready to ask its personnel "to accept the additional risk of political prosecution before a court whose jurisdiction the government of the United States does not accept".113 The response by human rights campaigners was again immediate. William Pace, Convenor of the Coalition for an ICC —recorded by the media— considered that "history... will record the actions of the US administration of President George W. Bush to wreck UN peacekeeping and the international criminal court as one of the most shameful lows in global US leadership".114
Despite the opposition of many nations115 and the calling to uniformity within the ambit of the Security Council made by Annan,116 what followed was the adoption on the 12th July 2002 of Resolution S/RES/1422 (2002). By such decision, the investigation or prosecution of personnel from a contributing State to an authorized operation, not a Party to the ICC Statute, would be deferred for an initial and renewable period of twelve months.117 A year later, such request of deferral was renewed by the Security Council.118
The opinion of UN Officials and Member States, NGOs and regional organisations, was that the hypotheses presented by the American Government lacked any reasonable foundation. The Governments of Canada, Malaysia and Syria expressed that there were numerous safeguards contained in the ICC Statute to prevent the political prosecution of peacekeeping-operations personnel,119 Brazil sustained that the checks and balances were appropriate,120 and Norway made reference to solid safeguards against arbitrary prosecutions.121 For the European Parliament, any agreement that in any way undermines the ICC is incompatible with membership to the European Union.122
However, representing the opposite point of view and amidst the heated debate, on behalf of the European Union, Ellen Margrethe Løj, the Representative of Denmark, showed support for the American position. She recognised that "it was understandable that the United States was seeking protection from politically motivated prosecutions".123 Ana Palacio, then Spanish Minister of Foreign Affairs, expressed that despite the opposing positions of the EU and the American Government, the EU aims to conciliate both policies to avoid jeopardising the American involvement and collaboration with the ICC.124 Vijay Nambiar, the Representative of India, regarding the ICC jurisdiction considered "it was difficult to accept an outside authority sitting in judgement on one’s country’s troops".125
In the international ambit and in a more technical level of discussion, the opinion of a vast number of parties involved in the debate sustained there is little possibility of American personnel being prosecuted by the ICC,126 simply because the American Judicial Power is undoubtedly a system that is prone to act within the Constitutional parameters set by the political structure.
When the Resolution was renewed, Kofi Annan used very mild and soft language when he stated that no peacekeeper has committed the type of crimes that are now under the jurisdiction of the ICC. He ‘hoped’ that renewal would not become an annual routine, giving the message of absolute immunity for peacekeeping personnel. In a statement of a political nature, he added "it was reasonable last year [2002] to adopt this resolution for 12 months, to give Member States more time to study the Rome Statute —which was only then entering into force— and to digest its implications. And I can accept that you feel it is necessary to renew the request now for a further 12 months, since the Court is still in its infancy and no case has yet been brought before it".127 A substantial amount of countries openly expressed their opposition to the renewal, with no effect at all.128
However, albeit the American judicial system is considered to be highly reliable, there could be scenarios in which, even if peacekeeping personnel is prosecuted by the domestic courts of the nationality of the offender, political controversies may be triggered.129 This could happen due to the pressure the international judicial system may find itself under to conduct an investigation or prosecution. In this sense, the Deputy United States Representative to the UN, declared that "the ICC is not ‘the law’... the ICC is vulnerable at each stage of any proceedings to politicisation… we have already seen in other fora the potential for politically motivated criminal charges against national leaders and military officers, including over the recent Iraq hostilities... in our view it [the ICC] is a fatally flawed institution".130
Such debate about the necessity to have a Court that is able to intervene if it is so required was seen quite recently when the Security Council authorised a Multinational Force to Liberia to support the transitional Government and the implementation of the ceasefire agreement.131 NGOs leaders expressed their opposition to and rejection of the compliance of the Security Council members to the American pressure when adopting the SC Resolution.132 Going even further than just the deferral agreed for the peacekeeping mission in Bosnia Herzegovina, impeding the ICC to intervene unless authorised by the SC, this time member States voted 12 in favour with non-against, to completely exclude the ICC from any jurisdiction over personnel belonging to States not a party to the ICC Statute. In further limitation to the Court’s prerogatives, prosecution of crimes would remain now the exclusive jurisdiction of the contributing State.133
Interestingly, in both cases (Kosovo-Bosnia Herzegovina and Liberia), even if the majority of States raised their concerns for the adoption of the SC Resolutions, one deferring the intervention of the ICC and the other completely excluding its jurisdiction, the Security Council found little opposition when the vote to adopt the decisions took place. Evidently, the political discourse of opposition was more a theoretical-political statement rather than a practical conviction.134 On the one hand, it shows that there may be more de facto rejection to the ICC than it first appears to be, and on the other, it demonstrates the effects of consistent lobbying in the ambit of international relations.
Pressure on the ICC as a judicial organ can come from different fronts. The misinterpretation of the context for which the Court was created can also be intentional or unintentional. The result is political pressure, which can be internal if it originates within the structure of the ICC itself, like the Office of the Prosecutor, the panel of Judges, the Registry or the Assembly of States Parties. Predominantly, the ICC is an international judicial institution, but it also performs non-judicial functions. The non-judicial functions can be performed by States (via the ASP) or individual/organs of the Court (Judges, OTP or Registrar).135 For Donat-Cattin, the ASP and the Registrar are more prone to politicisation, due to the administrative, executive and legislative decision-making functions they posses136 (e.g. management oversight to the Presidency, Prosecutor and Registrar, budgetary decisions, appointment of Judges and Prosecutor and alteration of the number of Judges, consideration of situations of non-cooperation by non-State parties or State parties to the Statute, performance of any other function according to the Statute and Rules of Procedure and Evidence, or suspension of voting rights in the ASP of a State in arrears of its financial contributions towards the costs of the Court).137
The inadequate perception of the ASP of the ICC by governmental instances may be the source of politicisation of the organ. In this sense, in an official statement made by the British Foreign Secretary, Jack Straw, the public servant declared that "as one of the first 60 states to ratify, the UK will be among the assembly of States parties which will take decisions on the direction, financing and staffing of the Court in the coming years".138 Statements like this demonstrate the potential ‘danger of politicisation’, since the "meaning of the term ‘direction of the Court’ in the context of a political statement addressed to the media by an organ of a Member State to the Rome Statute, namely the Ministry in charge of international relations",139 is questionable. With the same approach, in the context of the signature (subsequently withdrawn) of the instrument by the American Government, former President Clinton stated: "We are not abandoning our concerns about significant flaws in the Treaty. In particular, we are concerned that when the Court comes into existence, it will not only exercise authority over personnel of states that have ratified the Treaty, but also claim jurisdiction over personnel of States that have not. With signature, however, we will be in a position to influence the evolution of the Court. Without signature, we will not".140
The political character of the ASP is even encouraged by NGOs that recommend the Assembly "monitors and discourages any legal or political developments, at the national and international level",141 that threaten to interfere or undermine the Court. Apart from the influence the ASP already has regarding the framework and direction of the Court as a whole, if monitoring prerogatives involving external policy and legal issues (national or international) are added, the internal politicisation of the body is due to increase since any position over such matters is usually conditioned by the self-interest of States.
Pressure can also come from the exterior, from Governments or non-State actors, via the intervention of NGOs, human rights activists, or any other influential fraction (éminences grises) like the media. Bass has clearly identified different situations that affect the politics of international criminal tribunals. In a practical analysis, he refers to the following factors: 1) only liberal States support bona fide war crimes tribunals (although not all liberal States approve them); 2) protection of the national armed forces from the risks of conflict and prosecution by an international court (e.g. U.S.A. peacekeeping personnel); 3) the self-interest of nationals put before the interests of foreigners, by which "liberal states are more apt to pursue prosecution for war crimes committed against their own citizens"; 4) pressure from the public opinion to which democracies are usually responsive, and 5) pressure from non-State actors (NGOs).142 All these hypotheses contain in different degrees, a political appreciation of the law and the facts.
An example of how the purposes and use of the international criminal tribunal have been subject to external politicisation came precisely from the context of the Iraqi disarmament crisis leading to the Gulf conflict, when the armed intervention was initially being discussed by the community of nations in February 2003. A senior official of a political party in the United Kingdom (one of the countries that emphatically supported an armed intervention to achieve the dictums of the UN), sustained that the British Prime Minister would "deserve to be in an international court charged with war crimes"143 if an attack on Iraq was launched without the support of a UN Security Council Resolution.144 The international court he was making reference to was the ICC.145 The public servant’s statement was blatantly inaccurate. Maybe it was due to the politician’s naïveté or perhaps it was a product of genuine ignorance, or even maybe it did have some specific political purpose. Nonetheless it was daring and irresponsible not only because of the misleading impact that such comments have on the perceptions of the general public, but also because of the possible influence on the outcome of governmental actions and decisions.
Furthermore, the fragile balance of the institutional framework of the ICC may be affected if the expected fairness of the proceedings before the Court is taken by States as an ‘incentive’ to submit cases to the Prosecutor under Article 14 of the Statute. Such provision is not an open invitation to States to submit their unwanted domestic cases to the Prosecutor of the Court. Neither is it a suggestion for States to indiscriminately propose cases that are inherently under the jurisdiction of another Nation and where there are no signs of procedural irregularities.146 The ICC could be in danger of becoming a politicised international forum, facing two cardinal problems. Firstly, it could be flooded with those cases that, even if belonging genuinely to the domestic jurisdiction, States prefer not to deal with, whether due to the sensitive issues they are related to or because they succumb to the pressure of prosecuting the offender at the international level. Secondly, States could be encouraged to disqualify other national systems under false pretensions of international justice, when the real drive may be a political aim, expecting the ICC to become a sui generis inter-State dispute arbitrator.147
The ICC must remain neutral and unaffected by the sources of pressure that have been described, whether coming from external or internal entities. In order to do so, the process to select the cases must seek above all, to comply with the ultimate goal for which it was created: maintenance of international peace and security and the subsidiary administration of international criminal justice. The independence of the ICC depends on its ideological constitution and the human resources and how they interact with each other.
2. Selectivity of the process
The proceedings by which the ICC is going to select the cases to prosecute will become the real test on the operational viability of the Tribunal. Its credibility will, no doubt, depend on the transparency, neutrality and impartiality of the process. The provisions contained in the Statute and other related laws that form the legal framework of the ICC impose on the Institution natural restrictions and certain operational criteria to select cases.148 Apart from the positive law, interpretative guidelines in the form of operational policies and jurisprudence will develop from the practical cases that will eventually be prosecuted.149 For the selectivity of cases that are going to be investigated by the OTP proprio motu or those that are proposed by other States, these same rules apply.150
Adherence to the rule of law and interpretative guidelines (jurisprudence) will be of extreme importance during the first stage of the criminal procedure. It may be easier to achieve within the ambit of a national legal system that possesses certain uniformity regarding legislative, judicial and executive functions and where the State’s authorities are able to perform their duties where the rule of law prevails. However, in a highly diverse political environment or broad legal and social ‘mosaic’ like the international forum in which the ICC will exercise its competence, compliance with the law and interpretative guidelines might be far more complicated, especially if there is a situation of conflict. The OTP has recognized that the monopoly of force that a national prosecutor has within its territory and the rule of law to which the enforcement agencies of the State are subjected to, are two assumptions that do not apply in the case of the international Prosecutor.151 The prevailing circumstances in a country, the nature of the conflict, intervention by the international community and security issues can affect the involvement of the ICC in a specific case.152
In the international arena, the process of selection has to be aware of the particular social, economic and political phenomena the State involved may be experiencing. It also has to evaluate the gravity of the crimes committed and the profile of the suspected offender/s, all from the perspective of the ‘interests of justice’.153
It is precisely at this preliminary stage that the dual function of the ICC must be not only acknowledged but also enhanced. In addition to being a judicial organ —a function that is at its apex once the trial has formally commenced— the Court is a political institution, a facet that is at its peak during the process of case selection. Specifically, the "ICC Prosecutor sits at a critical juncture in the structure of the Court, where the pressures of law and politics converge".154 Whether in its judicial or political functions, the Court’s role in maintaining international peace and security is the predominant one. To forget these two inseparable aspects of the Court would be a mistake that would erode the ethos of international criminal justice.
In the political facet of preliminary examination, supervision or investigation of a particular situation/case, social, economical and democracy issues cannot be overlooked.155 The following interpretative guidelines are provided by this author, in order to complement the legal framework to be applied by the different organs of the International Criminal Court.
It has been considered that the previous examples of international tribunals (ICTY and ICTR) "have advanced to the stage"156 where it is the leaders —whether civilian, military or paramilitary— who are preferred over ‘minor actors’ for the prosecution by such courts. The differentiation on the type of actors that should ‘preferably’ be brought before the ad hoc courts was validated by the UN Security Council itself, taking note "of the position expressed by the International Tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors".157
Whether it is a ‘step forward’ for criminal justice is highly questionable. Empowering a judicial organ to select cases according to the ‘importance’ or the individual profile of the accused seems weak. The specific status of the individual in terms of ‘leadership’ must not be the sole parameter for the selection of the case. If so, it would imply a politicised measure turning the Court into a persecutor of leaders that, in terms of criminal justice, is not acceptable. Article 27 of the Statute incorporated the concept of ‘irrelevance of official capacity’, eradicating any distinction made based on the position of the offender. While the ethos of the Court is precisely to avoid any kind of favouritism or protection for those occupying ‘high-profile’ positions, it is also imperative to reaffirm that ‘low-profile’ actors are as likely to face their responsibility before the international court.
The Court is expected to intervene if the crimes committed are under its ambit of jurisdiction and the domestic judicial system has failed to prosecute. The wrong message must not be sent to ‘minor actors’, providing them with a sense of security that they could escape without being prosecuted by the international organ if the national system would fail to do so. Such a criterion deviates from judicial objectivity and threatens to corrupt the transparency that must permeate the whole process.
For Nicholas N. Kittrie this undesirable prerogative represents selective enforcement.158 It would also resuscitate or validate the ‘superior orders’ argument used by minor actors to evade criminal responsibility, expressly denied to any offender as a result of legal development inherited from the Nuremberg trials.159
If the ICC is confronted with a vast number of viable cases, a selection between the indictment and prosecution of intellectual or material perpetrators would be necessary in order to avoid a case-overload that the Court would be incapable of processing adequately, thus rendering it useless. Ideally, the Institution will be provided with the adequate financial budget that will give it the administrative capacity to deal efficiently with every case under its competence.160
The parameters for case-selection once a particular situation has unequivocally fulfilled the requisites of admissibility are complex and do not depend on a sole criterion. From a legalistic perspective, they must attend to the gravity of the crime/s committed. From a political standing, the Court must also take into account the interests of justice.161 Above all, the deterrent effect of the ICC depends on the awareness of perpetrators of the possibility of facing criminal proceedings when shielded by their national courts.
When the controversy on jurisdiction in the Tadi? case was decided by the Appeal Chamber of the ICTY, it was concluded that one of the requirements that must be met for an offence to be subject to prosecution before that international tribunal is that the violation of a rule of international humanitarian law must be ‘serious’: "it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim".162 Furthermore, regarding the clarification and elements of the concept of gravity, the ICTY has established that "the determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime".163
The Statute for the ICC, whilst abstaining from substituting the functions of national courts, also includes the gravity of the crime committed as a criterion to select which cases will be prosecutable when possessing legitimate competence to do so.164 The Preamble to the Statute affirms that the "most serious crimes of concern to the international community as a whole must not go unpunished".165 According to Article 5 (1) of the Statute, "the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole". Article 17 (d) provides that a case would be inadmissible where it "is not of sufficient gravity to justify further action by the Court". The gravity of the crimes has also been constantly reaffirmed at the diplomatic level.166
Nonetheless, the integral interests of justice are, in any case, a stronger argument to accept or reject the further prosecution of a case, even if the crime is considered to be grave. Article 53 (1) (c) of the Statute states that the Prosecutor may refrain from initiating an investigation if, after "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 interests of justice impose a threshold containing political elements in order to determine in which cases the ICC will abstain from intervening.
The responsibility of the ICC in contributing to international peace and security and its role in international justice have imposed a considerable legal and political burden on the Institution. This provision provides the Court with a legitimate excuse to refuse any involvement in a particular case that prima facie complies with the admissibility requirements. Good governance, democratisation or transitional justice processes affecting a State are, par excellence, the situations that could legitimate the Court’s decision to abstain, even when the crime is grave and the profile of the suspected actor/s is considered to be ‘high’. In order to achieve its core responsibilities, the Court will have to solve the dilemma between strict justice under the rule of law and that of peace, by evaluating the particularities and the interests of justice in each case.167 In doing so, and since "international law posits institutions and processes that transcend domestic law and politics",168 the judicial-political functions of the Court must be exercised with prudence.169
C. Awareness of the ICC of the intention of States to involve it as an ‘adjudicator’ of inter-State disputes
The ICC powers as a judicial organ, which competence will be triggered when a State is unable to comply with its international obligations, combined with the role States have to oversee compliance with international human rights standards, conveys a risk of politicisation by States pursuing illegitimate policies. Regimes may be tempted to use the Court, seeing it as a pseudo inter-State dispute adjudicator or as a mechanism to exert political pressure. Individual criminal responsibility is the sole ambit of jurisdiction of the Court, therefore, attempts to deviate or pervert the purposes of the Institution or use its decisions as evidence in other international proceedings, contain a political factor derived from the relevance its dictums will have. In this sense, a State —by referral of a case to the OTP— may seek to force from the ICC a decision on admissibility with the consequent determination that another State has breached its international commitments.
This problem may be exacerbated by the fact that some crimes (crimes against humanity and war crimes) require an ‘external’ element that goes beyond the sole criminal conduct of the perpetrator.170 Under the ICC Statute, an "attack directed against any civilian population" is defined as a course of conduct "pursuant to or in furtherance of a State or organizational policy to commit such attack".171 War crimes will be of particular interest to the ICC when committed "as part of a plan or policy".172 Consequently, such national policies have been identified as a ‘contextual element’ that inevitably involves the State.173
The ICC will not in any way adjudicate inter-State disputes, which clearly lay outside the scope of its competence. However, as a result of its judicial prerogatives on criminal law, it will definitely "touch upon issues relating to official acts".174 To illustrate this possible interference, the Milosevic case before the ICTY suffices.175 If Mr. Slobodan Milosevic is convicted of genocide, "it is difficult to see how this might not have at least a marginal probative incidence in the case brought by Bosnia Herzegovina against the Yugoslav Republic and currently pending before the International Court of Justice on precisely the same issue".176
Aware of the possible impact of its dictums (on admissibility and individual criminal responsibility), the ICC must remain impassive and avoid pronouncements that could be interpreted as a further judgement on the State or its policies in regards the commission of the crimes that are being prosecuted, in addition to the already sensitive decision that the performance of the domestic judicial infrastructure has been inadequate. To do so, the State must be granted the possibility to exhaust every domestic procedure available that would permit the correction of any possible deviation from the rule of law. Furthermore, the emphasis of any subsequent pronouncements of the Court must be on the specific/individual circumstances that led to the admission of a case or to a conviction, rather than on the entity of the State acting as a whole. It is individuals who commit the crimes, and it is also individuals who fail to observe human rights standards by protecting or shielding the offenders, evidencing how "from an international law perspective, the question of justice is somehow divorced from national politics".177 Nonetheless, the accountability and responsibility of the State as an entity for non-compliance with its international obligations of fair trial should be debated before ad hoc international organs specialised in determining human rights violations.
D. The Media. Use of, and Immunity to
The force and influence of the Media are such that violations of human rights standards may be committed if it is only because of its pressure that the ICC decides to conduct a preliminary examination, an investigation or a prosecution, without solid elements of conviction. Also, transgressions of the guarantee of fair trial could be committed once a criminal proceeding is taking place, if a certain outcome is forced by what has been called the ‘Fourth Estate’ or ‘Fourth Power’. The media is one of the means usually preferred by pressure groups by which not only the initiation of a criminal investigation or a specific outcome of a trial may be forced, but also the trench from where political battles are frequently fought, both at the national or international level.178
The intervention of persons or organisations wielding power and influence unofficially may be as effective as official sources in bending or modifying official actions or decisions. This has been a concern since the early stages of the ICC Statute negotiations.179 Academics too have rightly concluded that a "liberal government can find itself being lobbied for an idealistic policy from all corners: from public opinion, principled decision makers, opposition parties, and non-governmental organisations".180 This is no different in the case of international organisations (e.g. UN, ICJ, WTO or any other), including international judicial (criminal) tribunals. To illustrate this position, Bass considers that a "complete account of The Hague and Arusha [tribunals] must include the role of groups like Human Rights Watch, Médecins sans Frontières, and the Open Society Institute, as well as the role of the press".181 The ICTY has been particularly aware of the role of the media. According to the Office of the Registrar, broad publicity of statements may have the effect of undermining the Tribunal’s mandate of assisting in the restoration and maintenance of peace in the former Yugoslavia.182 Since the communications of Mr. Milosevic have resulted in "widespread media attention and coverage"183 and with the intent to avoid "potentially deleterious media coverage",184 by a Decision of the Deputy Registrar, communications and visits "between the Accused with any person(s) (particularly the media)"185 were prohibited.
In tandem with this Media-conscious attitude, to counteract the pressure put on prosecutors and judges, lawyers and advocates have been forced to implement Media-friendly strategies in their work as Defence Counsellors. Many have been the authors that have denounced the dangers the irresponsible intervention of the media represents for due process in criminal law, putting the value of fair trial in peril.186 The risk is even more palpable when "the global village threatens the ability of the legal system to ensure that the famous or the notorious are given a fair trial".187 Recently, this has happened in the framework of the ICTY, since "the Hague tribunal has stigmatized Karadic and Milosevic as indicted war criminals, showing the power of international institutions".188
In the Brdjanin case, the ICTY Prosecutor offered as incriminatory evidence an article of a journalist for the Washington Post, that included quoted statements attributed to the Defendant during the conflict. The journalist, supported by 34 media companies as amici curiae, refused to comply with the subpoena of the Trial Chamber and testify, a decision that was ultimately supported by the Appeals Chamber on the grounds of protecting the reporters and the newsgathering function.189 Additionally, it was considered that although war-correspondents "do serve a public interest",190 they "must be perceived as independent observers rather than as potential witnesses for the Prosecution".191 The article could still be admitted as ‘hearsay’ evidence (consequently affecting its reliability), if its probative value was balanced against its potential to undermine the fairness of the trial.192 The inability of the Defendant to cross-examine the Declarant (journalist), "would diminish the confidence the Trial Chamber could have in its accuracy and thus the weight the Trial Chamber would give it".193 This situation demonstrates not only the effects that reporting and media coverage may have on judicial proceedings, but also the prompt reaction of media companies to assist and participate when press related issues are being debated before a court.
In this respect, the human resources of the ICC (Prosecutor and Judges) must remain completely detached from the activities of reporters and impartial to the intense scrutiny and attention the media will pay to every pronouncement and decision they make, whether accepting or rejecting its involvement in a particular case, or the way in which the proceedings are being conducted.194 For this purpose, the qualities of the personnel of the Court are vital to its moral integrity and credibility: high moral character, integrity, impartiality and competence.195 In addition to these characteristics, prudence —considered the ‘classical political virtue’—196 will also be required, even if not expressly mentioned in the text of the Statute. If "elections are won by the press",197 it can also be assumed that the outcome of criminal cases may too be subjected to external influences. Indeed "journalists are increasingly political actors",198 so reporters too are expected to abide by modern journalistic conventions demanding responsibility, impartiality, objectivity and critical analysis. The combination of these virtues necessary to ICC officials and journalists alike will strengthen the role of the Court as a judicial organ and contribute to achieving its aims.
Once a preliminary examination, investigation or trial has started, relevant or sensitive information ought to remain confidential. The timing and measure for the disclosure of data, if appropriate, must take into consideration the protection of the parties involved and the repercussions on victims, offenders, witnesses and Governments.199 The Statute includes several provisions guaranteeing the confidentiality of the information, right from the moment the Prosecutor considers opportune to commence an investigation and throughout the proceedings.200 Unrestricted disclosure of information may lead to speculation or public debate by the media. The expectations created by the Press in one way or another about the outcome of preliminary investigations or the trial itself, are hardly objective, often harmful and could pollute or corrupt the proceedings.201 The sensitive matters under the jurisdiction of the Court demand a strict control on the use of the information. However, the ICC should permanently be subject to a close impartial scrutiny, in order to ensure the transparency of its activities and strengthen its credibility. Evidently, supervision is not expected to come from the media or the general public, but from States, international organisations such as the UN-SC, or from the Assembly of States Parties itself. If not guaranteed to be completely exempt from bias due to the national self-interest factor, at least these instances do offer the forum conveniens to counterbalance the effects of internal and external influences.
The same as an unlimited intervention of the Press, misinformation of the general public can also produce adverse effects that could diminish the credibility of the Court. Therefore, whenever opportune, a strong yet prudent information campaign is suggested to clarify and support the dictums taken by the judicial organ, avoiding speculation and ‘media litigation’.202 In this sense, the ICTY has concluded that the "right to freedom of expression includes not merely the right of journalists and media organizations freely to communicate information. It also incorporates a right of members of the public to receive information".203 As with the previous judicial institutions, in the case of the ICC the channel of communication is to be exercised by the Registry.204
3. Supervision: is the onus of proof transferred to the State?
One of the most sensitive powers that has been given to the ICC, and the one that most likely will incommode Governments, is the possibility to conduct de facto supervisory functions over national criminal proceedings, even without unequivocal proof that the State is in breach of its international obligations. Such prerogative contradicts the principle that institutions are expected and believed to perform their functions on a bona fide basis. The preliminary rules regarding admissibility contained in the ICC Statute cover the situations referred to the Prosecutor by a State Party [Article 13 (a)], or preliminary examinations/investigations initiated proprio motu by the OTP [Articles 13 (c) and 15]. It is Article 18 of the Statute that authorizes the OTP to review the progress of national proceedings on a periodical basis. To subject the State to a permanent supervision is tantamount to disqualifying its national proceedings and declaring, even if tacitly, that its institutions may not be reliable, hence the need for monitoring. Paragraph 2 establishes:
Within one month of receipt of that notification [of investigation], a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.
Once the State/s involved render a satisfactory report establishing the adequate operability of the investigative/prosecutorial mechanisms, the OTP must accept the domestic proceedings. If they are not considered to be valid, the Prosecutor can then request from the Pre-Trial Chamber, an authorization to commence an investigation, a decision that can be challenged before the Appeals Chamber.205
What is extremely debatable is the supervision over the State’s good governance policies. Under paragraph 3, "the Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation".206 The review by the OTP is conditioned to a ‘significant’ change of circumstances regarding unwillingness or inability, in other words, when the Prosecutor has obtained unquestionable evidence that the national authorities have failed to comply with the standards of justice. The mandate is unnecessarily reinforced by paragraph 5 that allows the OTP to request from the State/s concerned a periodical report of the progress of the proceedings or any subsequent prosecutions.207
The prerogative contained in paragraph 5 is not subject to any temporal or circumstantial (de facto) limitations [6 months or a ‘change of circumstances’ (paragraph 3)], and puts the State in the precarious position whereby it will have to justify or demonstrate, not once but repeatedly, the legitimacy of its national criminal proceedings, hence shifting the onus of proof from the OTP to the national regime. From a political perspective, the justifications of the State will not only be evaluated by the ICC but also by the whole community of nations, whose relations are becoming increasingly interdependent.
Furthermore, in cases where an investigation has been deferred by the Prosecutor on the basis that there are not enough elements of conviction to satisfy the requisites of admissibility [Article 19 (1)], "the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings".208
The supranational character of prerogatives like the one of supervision, threatening the independence of internal affairs, is strongly rejected by critics and detractors of the ICC.209 Even if "minimizing the radicalness of the ICC may have been a good promotional tactic for selling the concept to sovereign-conscious states",210 the full legal and political effects of its adoption and eventual implementation were not foreseen.
Regarding impact-assessment, in the case of both the ICTY and ICTR, the international community —especially the members of the SC— had the opportunity to evaluate and limit the impact of the institutions on their national interests, due to the territorial and temporal restrictions imposed on the jurisdiction of the ad hoc tribunals. In the case of the ICC, it was difficult for States to assess the ‘ultimate impact’ on their interests.211 These tactics are known as ‘creative ambiguity’ in diplomatic negotiation, in which ‘confusion’ has a considerable impact in the law creative-process and its interpretation.212
At the official level, this situation was recently acknowledged before the Assembly of States Parties to the ICC Statute (September 2003), during which the President, Zeid Ra’ad Zeid Al-Hussein, aptly expressed that "the challenges posed by the process of setting up a permanent judicial institution of universal character had not been fully anticipated".213 The practical and implementation difficulties are starting to arise, and many challenges involving political and institutional building still remain.214
In order to counteract political side effects that would unnecessarily expose the State before the international community, strict adherence to the suggestion of conducting the preliminary examinations or investigations in confidentiality is necessary. The prerogative of the Prosecutor is optional according to Article 18(1) of the ICC Statute. The provision states: "The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States".215 However, Article 19(11) is precise in the confidential character that the information provided by States must have, at the request of the Government involved.216
Practically, there are no substantial qualitative differences between the information gathered by virtue of initial or subsequent requests made to the State by the OTP and any other data submitted by the State that must be treated as confidential, if it is so requested. In the former case, the prerogative of the OTP is discretionary, whereas in the latter, the Prosecutor is obliged to respect the confidential character of the information. Therefore, it is a valid assumption to consider that in both cases, the OTP must be discreet and not only when the State has requested so, since there are no compelling arguments that could justify the unrestricted publicity of the preliminary examinations or investigation. Discreet proceedings benefit the investigation of the OTP, help to enforce the autonomy of State’s internal affairs, contribute to the protection of the accused, witnesses and victims, and may secure important evidence. Confidentiality also enhances the administration of justice, especially in the criminal ambit, and avoids the discredit of the Government of the State.
IV. STATE RESPONSIBILITY
In a General Comment, the Human Rights Committee considered that "to draw attention to possible breaches of Covenant obligations by other States Parties should not be regarded as an unfriendly act but as a reflection of legitimate community interest".217 In theory, such recommendation is the ideal principle according to which governments should interpret other State’s actions that seem to intervene in their national affairs. However, in practice, the ‘legitimate interest’ of States in the performance of other nations regarding human rights protection and adherence to the international rule of law is not often completely altruistic, even if prima facie it may seem to be or it is presented as such.218 The international forum is the platform of choice —for being the optimal one above bilateral negotiations— in which States will conduct their strategies and lobbying to impose the terms of the demands of their own political agenda.219
Unfortunately, it is on many occasions that the exposure of other States before the international community provides an effective means to achieve not-so-legitimate national interests. Numerous examples demonstrate how economic sanctions are imposed, development assistance is provided or transference of technology is facilitated, all depending or conditioned upon the human rights record of governments in less liberal States.220
That the use of force amongst liberal States is almost inconceivable —or at least harder to take place in the current state of international affairs— is not necessarily a reflex that the frictions and tensions between governments have diminished or vanished.221 The ‘Golden Arches Theory of Conflict Prevention’, according to which "no two countries that both have McDonald’s had fought a war against each other since each got its McDonald’s"222 and those who exceptionally "ignore that fact will pay a much, higher price than they think",223 demonstrates the evolution of international relations now being primarily ruled by globalisation and geopolitics. Economics, commerce, environmental and sustainable development issues have provided ‘new’ pressure mechanisms, supplanting the ‘old’ disposition to recourse to armed force. That political negotiation is as present and strong as ever demonstrates how intricate modern international relations continue to be.224
Adding to this new dynamic of world politics, the role of the ICC is magnified by its implications for State affairs and the embarrassment for governments its intervention may cause, a concern that was validly and constantly raised during the negotiations leading to the adoption of the Statute and during its subsequent signing and adoption process.225 The repercussions caused for the State when international crimes under the possible jurisdiction of the ICC have been committed, emanate from different sources. According to their origin, two categories of effects are to be distinguished.
a) Consequences for the State derived from a ‘grave’ violation of the international legal order per se. For those States that decide to ignore the new rules of international relations that emerged at the end of the dual superpower hegemony during the Cold War and imposed by the subsequent arrival of globalisation, some of the possible repercussions derive from situations of conflict in which actions in violation of international law —mainly regarding the use of force— are taken.226 It is the rupture of the international legal order, and the transgression to the system of human rights protection and humanitarian law, that will inevitably convey accountability to the State as a social-political entity, prompting the intervention of the community of nations.
These effects or collateral consequences have nothing to do with the intervention of the ICC in a specific case (since the sole existence of international crimes does not trigger the Court’s admissibility), but with the original transgression of the international legal establishment (i.e. crimes threatening international peace and security).
The violation of the international legal order is the initial source of subsequent collateral burdens imposed on the State. This scenario must be differentiated from those cases in which, additionally, the State fails to respond and react accordingly, a situation that would bring further consequences for the State. Even if the State punctually, and according to international standards, complies with its inherent duties of investigation and prosecution of the international crimes committed in such circumstances of conflict, the State will still be subjected to diverse and significant effects. Political and diplomatic pressure, economic sanctions, embargoes, humanitarian intervention or even the use of armed force, are mechanisms at the disposal of the international community when the stability of the international order finds itself under clear threat. The forum in which these sorts of reactions and decisions should take place would be that of the United Nations, albeit unfortunately, bilateral or multilateral actions can also be expected in the current state of international affairs.227
However, situations that in any way have affected the stability of the international order due to a threat of international peace and security are particularly aggravated when, to the international crime/s, the participation of the State as one of the elements of the criminal conduct is added. Hence, those crimes that require a State element (mainly war crimes and, eventually, aggression), will acquire a new dimension.228 The involvement of the Court would not –and should not— impose any further burden on the State, restricting its scope of influence only to decisions on individual criminal responsibility and not beyond.229 The transgressor State as an abstract entity will ultimately be held accountable for the governmental actions performed in the appropriate forum.
b) State responsibility due to non-compliance with international obligations (Right to a fair trial, access to courts and judicial protection). It is the non-compliance (whether because of unwillingness or inability) with a State’s duties to uphold its international obligations of administration of justice (i.e. investigation/prosecution, access to competent courts) when crimes under the jurisdiction of the Court appear to have been committed that will trigger the responsibility of the State. The nature of this strictu sensu or ‘specific’ responsibility emanates from the failure of the national authorities to fulfil their obligations in regards their duty to administer criminal justice, subsequent to the initial violation of the international legal order (grave crimes) and/or the State element in the alleged crime/s committed.
The source of the legal burden imposed on the State is its failure to comply with its international duties. However, the Court’s dictum by which a case is admitted will provide highly credible official confirmation that the violation has actually happened. In this sense, during preliminary negotiations of the final draft of the ICC Statute, it was considered by analysts to be "offensive to require the ICC prosecutor to present affirmative evidence impugning the availability or effectiveness of a state’s judicial system. As a matter of decorum and respect to the State, it appears more appropriate to deny state jurisdiction on the basis of a failure to satisfy the burden of proof as opposed to an affirmative conclusion that the system is inadequate".230 Therefore, the role the ICC will play is indeed of the outmost significance due to the weight of its decisions, the interaction the Court is expected to have with other international organs (human rights ad hoc institutions, commissions or courts), and the internal effects on the national regime. The actions that have breached the rule of law are a posteriori, once a situation of conflict has already erupted and the international crimes committed have remained unattended by the State’s authorities.
It is this involvement of the ICC and the influence it will have on State responsibility (civil and international) —derived from a decision on admissibility— that are of particular interest to the present author, since they possess a more defined legal character from a technical perspective, as opposed to the highly political content of the collateral consequences emanating from the State’s initial violating actions per se.
Interestingly, in a system characterised by the qualitative equality of all nations where the ICC is not above any domestic judicial power, the disqualification of national criminal processes implied by the decision on admissibility has clear repercussions on the practice of international criminal law. Potential harmful risks increase if the ‘implicit presumption’ observed during the ICC negotiations that "it is the ‘other’ outside the conference room whose deeds require the establishment of an international criminal court"231 is combined with the perception that "only liberal states have legalistic domestic norms that have a clear impact on foreign policy",232 forcing them to be more compliant with international law. If so, international criminal law would become the "weapon of the Brave (states) against the Naughty (states)",233 dooming the ICC to international discredit, judicial arbitrariness, political bias and subsequent operational failure.
1. International State responsibility and International Criminal Law
It is beyond any question that the issue of responsibility is regarded nowadays as "a general principle of international law",234 State responsibility being related "both to breaches of treaty and to other breaches of a legal duty",235 and translating into the obligation of the State "to make reparation in an adequate form".236 In other words, any wrongdoing perpetrated by the State in violation of human rights standards has to be, unquestionably, "considered a legitimate area of study".237
The "rise of jus cogens and of obligations erga omnes evidences the importance which the international community attaches to the recognition of certain acts to be criminal offenses against the entire international community itself".238 Beyond the individual responsibility for the commission of such international offences lies the responsibility of the State for not assuming its investigative and prosecutorial obligations adequately. In this sense, the Human Rights Committee has declared that in case of violations of the rights set out in the ICCPR, "States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant".239 The legitimisation of the action against the State finds its origin in the State’s non-compliance with its prosecutorial obligations, while the decisions on admissibility taken by the Court will be fundamentally an indubitable element of proof of the breach of international regulations.
The legal recourses that could generate the responsibility of the State can be classified according to the party that will be exercising the action. There are three different categories of groups that could raise their pleadings against the transgressor State: the defendant/s, the victim/s, and third States members of the international community. All of these parties could be acting against the State that has not been able to comply with its international obligations, specifically those concerning the enforcement of fair trial and administration of justice, which are always a reliable indicator to measure the effectiveness in protecting human rights.
One of the entities that will be affected by the failure of the State to ensure the international standards of criminal law will be the person taken from the domestic system of investigation or prosecution to the international jurisdiction, albeit the repercussions will materialise in two different and opposing planes. From a practical standing, the intervention of the ICC will obviously deprive the offender of the illegal protection of the regime that could eventually culminate in the evasion of criminal responsibility, a situation that would be altogether irregular and for which the ICC was specifically created to prevent.
However, from a legal perspective and extremely important, the individual would also be deprived of the benefits of facing an investigation and prosecution that is conducted by the national authorities acting under the territorial principle.240 The advantages of being tried by his own legal system are various: interpretative problems or delays caused by the translation of the proceedings if conducted in a different language to that of the offender are avoided,241 the familiarity of the parties to the proceedings with the adjective rules of criminal law is propitious for fairness, domestic proceedings tend to be more expeditious,242 procedures for the submission of evidence and the testimony of witnesses are facilitated, and the right of recourse to any domestic or international remedies available to the offender is secured.243
Furthermore, when Tadi? argued the disadvantages of his transference to the ICTY from the German courts, the ad hoc tribunal concluded the following:
It was claimed on behalf of the accused that he was disadvantaged by his removal from the jurisdiction of German courts to that of the International Tribunal since that denied him the opportunity under the optional Protocol to the ICCPR to have recourse to the Human Rights Committee to complain about the trial accorded him. No doubt this is so, since that right does not appear to apply to proceedings before international tribunals, but that is nothing to the point in any challenge to the jurisdiction of this Trial Chamber, it can only be remedied, if remedy is required, by a further Protocol to the ICCPR. A similar comment applies in the case of the European Convention on Human Rights, to which the Defence also refers.244
With this decision, international human rights institutions are prevented from becoming an appeal instance that would revise decisions of the ICTY. Such criterion is congruent with the protection of the rule of law and the intrinsic notion of ‘tribunal’ within a judicial system.245 However, the offender is also deprived of the right to exhaust available national or international remedies that would otherwise be available. To summarize, prosecution by the national system minimises the difficulties that any international tribunal would be confronted with, especially if the Government is not in disposition to cooperate after its prosecutorial capabilities have been disqualified by the International Court. Even if, ultimately, the defendant is subject to an international trial that will prima facie be respectful of human rights standards, the right to a fair trial by his domestic jurisdiction has not been ensured, legitimating a subsequent action against the entity invested with that duty, i.e. the State.
The appropriate forum to exhaust the action will be that of the institutional national regime in the first place. Subsequently, the offender could recourse to international human rights institutions, such as the Inter-American Commission or Court, or the European Court of Human Rights, since what would be contested are not the proceedings that took place before the ICC but the inability of the State to fulfil its prosecutorial expectations.246
The second type of action innate to individuals is that belonging to the victim/s of international crimes to whom justice by means of the impartial and independent prosecution of the offender is denied by the authorities of the State.247 The legitimacy of the victim’s action is founded on the denial of the administration of justice per se committed by the State, and prompted by the decision on admissibility made by the ICC.248 Regarding the rights of the victims of the crime, apart from the reparations to which they may be entitled and derived from the suffering caused by the criminal conduct,249 the Statute secures any other action ascribed to them under national or international law.250
It is enough for the State to discharge its obligations on criminal justice towards the victim, to exhaust all the procedural mechanisms to determine a) that a crime has been committed and b) to eventually adjudicate responsibility for such crimes to those individuals involved. If one of the two elements is lacking —whether because there was no crime, or the perpetrator could not be positively identified— despite the efforts of the authorities to establish the legal truth, it can still be considered that the State has complied with human rights standards. The victims would not be entitled to pursue further actions against the State.
The fact that the ICC did not finally conduct an investigation or prosecution is also irrelevant to the matter of the pleading, since there are situations in which, even if having competence to admit a case (international crimes have been committed and the national system has failed to fulfil its obligations), the ICC may still excuse itself from intervening (interests of justice or the crime not being grave enough).251 Furthermore, the proceedings before the Court may be interrupted or suspended for external circumstances.252 In such cases, the victims’ claims would be safeguarded and legitimate. However, if the Court finally intervenes, it is further irrelevant if the international final verdict determines either the acquittal or the conviction of the accused, since it is the breach of the duty to administer justice the source of the obligation and not the adjudication of individual criminal responsibility of a particular offender.
The intervention of the Court must be definite in order to produce with all certainty the evidence that would prove that the State has not complied with its international duties. Therefore preliminary examinations would not be sufficient to validate any action against the State. At this phase, the national proceedings may be ongoing, domestic remedies may still be available (giving the State the opportunity to rectify any deviation from the rule of law) or the Prosecutor may not possess all the necessary convincing evidence to satisfy the requirements of admissibility.253 Preliminary proceedings before the ICC do not imply that the State has been found in breach of its obligations.
The forum before which the pleadings must be brought —as in the case of the defendant’s actions— would be the domestic competence, and subsequently the international competence provided by human rights commissions or courts. It is a fact that the decision on admissibility by the ICC will provide eloquent and convincing evidence that the State has failed to uphold the rule of international regulations.
The third type of action is that possessed by third States members of the community of nations, as guarantors of the international legal order, consequent to the post-WWII legal development.254 The duties of the State to observe its obligations in the area of human rights are indubitably of the erga omnes type.255 The relevance of this characteristic is related to the legal concept of actio popularis, understood as the "right resident in any member of a community to take legal action in vindication of a public interest".256 At the international level, such right has now been accepted as the action taken by a State member of the international community against another, for the breach of its contracted obligations or the violation of peremptory norms of general international law or erga omnes, especially regarding violations involving human rights protection.257
According to current international law, the responsibility of the State as a result of the exercise of actio popularis would impose on that State the obligation to cease the criminal conduct, restore the rule of law, and provide adequate reparation and compensation to the victims of the crime.258 Furthermore, the failure of the State to investigate and prosecute could also trigger the involvement of international organisations and human rights monitoring bodies in order to analyse general compliance with human rights standards by the national infrastructure.259
The role played by the ICC in cases of third State actions is, once again, one of ‘evidence provider’. In other words, once the ICC has exercised its jurisdiction according to the requirements established by the Statute, the admissibility decision constitutes a consistent and incontrovertible element proving the breach of obligations of the State. In tandem with this, it is irrelevant whether the ICC has in the end adjudicated criminal responsibility or has acquitted the defendant/s (such conclusions are just a direct consequence of the basic jurisdictional proceedings of the Court). According to international law, the State is responsible for wrongdoings committed by any of its agents or organs, and the administration of justice is definitely one of the functions of the State as a whole.260
The ‘criminal’ responsibility of the State is not an issue here because crimes can only be adjudicated to individuals according to a pure interpretation of criminal law theory.261 Even though the State may bear effects for its internationally wrongful acts or serious breaches of international obligations262 —in this case related to the commission of any of the crimes defined by the ICC Statute— such consequences cannot be equated with the adjudication of individual criminal responsibility strictu sensu. For this latter purpose was the International Criminal Court created, since State criminal liability as such, is highly debatable and without "general acceptance among states".263
Hence, once the Court’s competence has been unequivocally established, the State may undoubtedly be held accountable, not for the crimes committed by individuals (natural persons),264 but for the incapacity or unwillingness to prosecute and try the case under national criminal laws. Article 25(4) of the Statute safeguards and reaffirms this position as follows: "No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law".
Any existing contradiction about the possibility of allowing third States to denounce transgressions on the grounds of not having a direct interest is not present in the ambit of international criminal law, since violations to human rights do pose a detriment affecting the whole community of nations legitimising the interest of any State. Normally, the forum to litigate such controversies would be that of the International Court of Justice (ICJ).265 Unfortunately, the ICJ is extremely restricted to decide upon a case if the States involved do not accept its jurisdiction.266 Therefore, the actio popularis is limited by the necessary previous acceptance of the State in violation of its international obligations on human rights of the jurisdiction of the ICJ. Such restrictive condition renders the international entitlement to take legal action almost "hollow in practice".267
However, apart from the convenient forum that the ICJ would provide to decide in a particular controversy, if States are not willing to subject themselves to this judicial organ there are other means by which the international community can seek the enforcement of the restoration of the rule of law and reparations, i.e. actions taken by organs and treaty bodies of the United Nations Organisation, validated by the community of nations.268 For further action when international peace and security is threatened, the UN Security Council is yet another instance that has provided an adequate platform from which to conduct diplomatic negotiations, political pressure and, in extreme cases, the imposition of more drastic measures to force compliance by the defiant State.269
2. Recognition by the ICC of decisions regarding human rights violations delivered by international regional organisations
The impact of the decisions delivered by the ICC will be considerable due to their high degree of legitimacy and certainty, in addition to the judicial mechanisms of control available within the Court’s legal framework and the international validation that the significant number of ratifications of the Statute presupposes.
In the same way, the steady trajectory of human rights organisations has culminated in the recognition of their decisions as equally valid, although the perennial problem is of course their enforceability.270 The expansion of international relations, the development of treaties and the increasing specialisation of the different branches of the law, have evidenced and stressed the interdependence between the systems of international criminal law and human rights.271 In this state of affairs, international institutions cannot operate in isolation, as they are intimately interlinked with one another. It is not only inevitable then, but also recommendable, that the ICC and human rights institutions (e.g. HRC, ECHR, ACHR) develop clear awareness of each other’s functions. Even if the jurisdictional ambit is intrinsically different (the former adjudicates individual criminal responsibility whereas the latter will evaluate compliance with human rights standards), their decisions can have mutual significant and diverse effects on their proceedings.
The influence of the decisions of international human rights institutions (HRI) on the admissibility process of the ICC can be categorised as follows:
The resolution of a procedure filed by an affected entity before a human rights institution is pending, and the subject matter of the complaint is related to the failure to ensure and enforce the fair trial/access to justice guarantees on behalf of the State. In this case, the ICC would initially be evaluating the same facts of the complaint before the HRI, when analysing the admissibility of a case. This is an identified area of overlapping functions and competence.
Under these circumstances, the State could notify the ICC in its first communiqué in response to the Court’s information request, that there are proceedings being held before HRI.272 The objective would be to avoid conflicting decisions (the ICC admitting the case and the HRI concluding there has been no violation to human rights standards) that are harmful to any legal order, the international framework being no exception.
In addition, the suspect State and the Defence could use as an argument to defer the involvement of the Court that the effectiveness of the compliance and enforcement of human rights standards regarding the criminal procedure is under investigation by a legitimate international organ.273 To avoid controversies over conflictive decisions, the ICC could momentarily suspend its decision on admissibility, adopting a role of supervision over the proceedings.274 In the case the Prosecutor is authorised by the Pre-Trial Chamber to proceed with the investigation or prosecution, it is recommended that such decision on admissibility be strongly and undoubtedly substantiated.275
In this state of affairs, a decision evaluating the performance of the State on human rights protection has been delivered by an international human rights institution. Once the proceedings before a HRI have reached their final stage, two variants are to be expected:
a) Human rights violations have been found. This is a relatively simple scenario, in which the ICC decision to admit a case would be strengthened by the dictum of the HRI that has conclusively determined the existence of human rights violations, eradicating any possible doubts about the failure of the State to comply with its international obligations. However, the determination of human rights violations by a HRI does not necessarily imply that the subsequent intervention of the ICC is inevitable. The complementary nature of the Court and its role in the maintenance of international peace and security allow the Institution to decline the opening of proceedings if the case "is not of sufficient gravity"276 or there are substantial reasons to believe that an investigation or prosecution "would not serve the interests of justice",277 after taking into account the specific circumstances of the victims and the offender. The option to reject a particular case, even when initially complying with the elemental requisites of admissibility (i.e. international crimes and failure of the State to investigate or prosecute), is a safety mechanism substantiated in the prerogative of prosecutorial discretion, endorsing the international aims of the Court.
b) No human rights violations have been found. This hypothesis poses serious legal implications for the possible operative framework of the ICC because the HRI decision would be tantamount to an absolution of the State in terms of the accusation consisting in the failure to comply with human rights standards. Therefore, in order to exercise its jurisdiction, the Court would not only have to demonstrate that the State has been incapable of providing with a fair trial, but it would also have to disregard and prove the inadmissibility, inapplicability or inaccuracies of the decision delivered by the HRI. To do so would necessarily imply the disruption of the fragile balance of inter-institutional coexistence. Hence, as long as the circumstances remain unchanged (no human rights violation is proved), the temporary suspension and eventually the closure of the proceedings before the ICC are advocated.278 If after the reasonable exercise of the supervisory prerogatives of the ICC over the national proceedings no human rights violation is demonstrated, the Prosecutor shall consequently abstain from initiating an investigation and proceed to conclude the case.279 The closure of the matter may not be definite, since the Prosecutor "may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information".280
It is by theoretical analogy or logical homology that arguments against disregarding or ignoring (de facto or de jure) HRI decisions can be found in the legal framework of the ICC. Article 20 on non bis in idem firmly supports the idea of recognising decisions delivered by ‘another courts’. Paragraph 2 urges tribunals belonging to national systems to accept the decisions of the ICC, whereas paragraph 3 imposes the obligation on the ICC to accept and recognise decisions of domestic tribunals. The fact is such provisions refer to the adjudication of individual criminal responsibility by national judicial organs and not to the decision on the incapability of the State to adjudicate that responsibility delivered by human rights organisations. However, the theorem that decisions delivered by other judicial organs or international bodies ought to be acknowledged and respected does provide strong elements of conviction and is in tune with current international law.
Further elements of conviction that prioritise the recognition of decisions delivered by human rights institutions strengthening their enforceability, are the high specialisation and natural competence in the area of human rights of such organizations. HRI are, unquestionably, ad hoc organs specifically created for the monitoring and evaluation of international standards applied during national proceedings. For the ICC, such power is only added to its main judicial functions, more as part of its political feature.
The decision to suspend the Court’s proceedings is not unchangeable or definite, and it may not completely interrupt the functions of the OTP.281 However, only if there were a modification of the original circumstances that were analysed by the HRI (i.e. new evidence of violations), the intervention of the ICC would be legitimate. Such is the case of the State not being able to adhere to the rule of law or persevering in the protection/shielding of the offender. The integrity of the HRI then would be preserved and the purposes of international criminal justice safeguarded.
Vice versa, the decisions of the ICC on admissibility can also have an influence in subsequent proceedings of human rights institutions. In this scenario, the ICC has performed its analytical functions without other proceedings having been previously filed before a HRI. The admission of a case by the ICC will provide human rights organs with undisputable elements of conviction, albeit only regarding the part of the complaint that involves the ability of the State to enforce fair trial/access to justice guarantees.
3. International consequences attached to State responsibility
It is when the national authorities do not voluntarily act on the violations of human rights standards that have been committed within their jurisdiction —whether by providing a remedy, correcting the injury and/or restoring the rule of law— that the international system of human rights will react on the basis of legitimate interests pleaded by defendants, victims or third States.
The "existence of effective remedies is an essential component of international human rights law",282 to such an extent that "without reparation to individuals whose Covenant rights [ICCPR] have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged".283 Nonetheless, international law has failed to enounce with precision "what are considered to be ‘effective’ remedies… or what remedies should be made available through international procedures in the event a state fails to afford the necessary redress".284
Whether due to a complaint filed by the defendant, the victim/s or a third State, the international system that regulates the right to an effective remedy in case of human rights violations is vast, formed by organs of the United Nations as well as the existing regional human rights institutions.285 To the inconsistent legal framework on the enforceability of obligations attached to the responsibility of the State, the decisions on admissibility of the ICC are to be added as a source of unequivocal proof that the State has breached its obligations and has consequently incurred responsibility, since the competence of the ICC presupposes not only the commission of an international crime by an individual, but also the incapability of the State to respect human rights standards for whatever the reason. Thus, the ICC Statute does not provide either the mechanisms to denounce, claim or enforce these types of actions, its main focus being criminal proceedings (evaluation of evidence, adjudication of criminal responsibility, enforcement of sentences and reparations to victim/s derived from international crimes).286
In order to fulfil the responsibilities the ICC has on the maintenance of international peace and security, the Court will have to rely on the observance by States of international declarations and provisions that safeguard and promote reparations and remedies. Hence, the system of international criminal law will consequently and primarily depend on the efficiency of the mechanisms provided by a myriad of international instruments.287 This is so because of the nature of the circumstances that will legitimise the intervention of the ICC (international crimes, breach by the State of its international obligations due to unwillingness or inability and the subsequent disqualification made by the ICC).
It could be difficult for the national system to be prompt in providing —proprio motu— adequate remedy to those affected by the human rights violation (lack of fair trial guarantees; denial to access competent judicial, administrative or legislative authorities; or absence of adequate remedy). Amongst the most relevant documents referring to the theoretical bases and mechanisms to implement remedies are the UDHR,288 the ICCPR,289 the ECHR,290 and the ACHR.291
Clearly, the catalogue of actions that can be taken to redress a particular human rights violation is diverse.292 However, the most important mechanisms that can be extracted and specifically applied in cases related to international criminal law can be categorised in two main groups. The first category consists of ‘Specific remedies’ aiming to repair damages and administer justice by preventing impunity, and their repercussions have an impact at a more personal level. Therefore, it includes the compensation to the victim and judicial redress, achieved by investigating and bringing to justice those who perpetrated the violation. This classification originates in the essence of the administration of justice and amalgamates the core of the international resources available to implement remedies and the objectives of criminal law.293 Specific remedies include:
a) Right to Compensation derived from the State’s non-compliance with its international obligations. The victim/s of a human right violation are the immediate subject of redress. If the damage inflicted on those who are suspects of committing a crime by irregularities during an investigation or prosecution is to be compensated, both at the domestic and international level,294 then an individual whose right to demand justice has been denied has, without doubt, an equally enforceable action to reparation.295
b) Investigation and prosecution of State officials that have breached the rule of law concerning human rights. The State cannot avoid the obligation to investigate and, when viable, impose administrative sanctions or prosecute those public servants that have committed human rights violations prompting the intervention of the Court. The obligation to investigate/prosecute extends to private individuals that participated or contributed in the actions leading to the admissibility of a case by the ICC, if their actions constitute crimes under the national criminal code. These proceedings are an indispensable condition to restore the rule of law, ensure the credibility of the regime and its institutions, and eradicate impunity. They are also a duty under international law. Since States have accepted the jurisdictional ambit of the ICC by ratifying its Statute, it is a consequence that once a case has been admitted by it, the State would have to determine the responsibility of those whose actions triggered the involvement of the ICC in the first place.296 Therefore, no decision to relieve public servants of such responsibility will be valid, especially when taken with the sole purpose to cover or protect the transgressor.297
The second category of mechanisms consists of ‘General actions’, the objective of which is to restore the rule of law and secure the non-repetition of the violation/s. It conveys meta-judicial effects more of a political character.298 Amongst them are human rights monitoring, diplomatic and economic measures (sanctions, embargoes, conditioning of financial development assistance), as well as direct intervention in the gravest cases. For the non-compliant State of international mandates, "real costs in terms of international isolation, opprobrium, or loss of trade or aid"299 will be imposed. "These costs take the decision to comply with the law out of the realm of the merely possible, and therefore negotiable, and place it in the realm of the mandatory and nonnegotiable".300 Their ethos departs from the interests of the community of nations to maintain international peace and security, put at risk by State actions directed to protect or shield the perpetrator of international crimes.
4. The responsibility of the ICC in minimising adverse effects on the State
A preliminary examination may be prompted by a State party to the Statute, the UN Security Council or the Prosecution Office itself under its proprio motu powers.301 After conducting such preliminary proceedings, the Prosecutor may conclude that initiating an investigation is not viable due to a lack of reasonable basis.302 In the same way, after an investigation has taken place, the Prosecutor may reach the conclusion that there are not sufficient elements or justifications to prosecute a case.303
Under the legal framework of the Statute and the Rules of Procedure and Evidence, in cases where no investigation is pertinent, those who provided information must be informed of the decision.304 Consequently, if the State which legality or availability of its proceedings is under scrutiny or questioned was requested to provide any information, it should too be diligently informed of the decision not to investigate.305 Even further, when no prosecution is to be initiated because there are no sufficient basis, the notification of the decision should also be notified to the ‘allegedly suspect’ State involved in the proceedings.306 Unfortunately, according to the RPE, only the State/s or the SC that referred the case to the attention of the OTP are to be informed. Since there is no provision expressly prohibiting such communication, and the limitation is not coherent with the transparency and accessibility the proceedings before the Court must possess, the notification to ‘suspect’ States ought to be extended.
The consequences at the national and international level when the integrity and legality of domestic systems have been doubted and questioned are significant, e.g. the confidence in national institutions or the credibility of the State in the international forum may be tarnished or diminished. In situations of transitional justice, these repercussions are particularly grave. Therefore, if it is confirmed that the allegations are unfounded or unsubstantiated, a clear exoneration delivered by the Court will contribute to nullify any adverse effects. Internally, national institutions are redeemed, and externally, the State will strengthen its position as a law-abiding regime.
The notification must contain the reasons for the conclusion, emphasising the circumstances and the reasoning that led the Prosecutor to determine the non-viability to conduct an investigation or prosecution, especially in cases where it has been confirmed that the State has complied with its international obligations of due process and the case would not be admissible according to Article 17 of the Statute.
Under the same ideology but applied at a different procedural stage, when the ICC has admitted a case for investigation on the grounds of inability rather than unwillingness, emphasis must be given, if appropriate, to the fact that, most likely, it was a material impossibility or a case of force majeure beyond the control of the State that prevented it from complying with its investigative/prosecutorial duties. Acknowledging extraordinary events or contingencies, differentiating them from clear cases of corruption of public servants or bad government, can minimise the discredit and unnecessary exposure of the State.
In situations when it is the State itself that willingly refers a case to the ICC due to the recognition of its own inability to conduct the proceedings or for any other social, economical or political motives, the Court must, in the same way, be precise and underscore such circumstances. Unfortunately, regarding the conflict in Uganda, the OTP gave quite a general statement failing to emphasise the fact that it was the Ugandan Government that had referred a situation to the jurisdiction of the Court. The Prosecutor announced that his Office "will investigate the crimes committed on Saturday 21 February 2004 in Barlonya camp, North Eastern Uganda",307 situation that "was referred to the Office by the government of Uganda last December".308 In the following months (June 23 2004), in what eventually became the first official investigation before the ICC, it was announced by the OTP that the grave crimes allegedly committed in the territory of the DRC since July 1 2002 would be investigated.309 The statement was again insubstantial and general, lacking conclusive determination to specify the existence of a previous referral made by the Government of the DRC. More determinate official statements on behalf of the International Criminal Court would, in some degree, contribute to alleviate the difficult circumstances affecting both the Ugandan and the DRC Governments, apart from sending the message to the international community that State parties do acknowledge the benefits and credibility of the ICC.
5. Conclusions
It is clear that the decisions on admissibility of the ICC will be intimately related to the whole set of consequences that could be implemented by the international community and that have the transgressor State at the centre of attention, independent of the criminal responsibility with which the individuals could be adjudicated.
Whether by means of ‘friendly settlement’, ‘views’, ‘recommendations’, ‘provisional measures’, reports by monitoring bodies, binding decisions or other actions taken, States that opt to ignore human rights standards will be confronted with their actions. State isolation is slowly but steadily becoming an idea belonging to the past,310 especially after the end of the Cold War period and the arrival of new inter-State dynamics impregnated with democratic values and ruled by globalisation, according to which human rights provisions protect indistinctively every individual. In the current scheme of international relations it is well established that the obligation of States to adopt measures to enforce the rights set by the ICCPR is unqualified and of immediate effect. This means that failure to comply "cannot be justified by reference to social, cultural or economic considerations within the State".311
That the obligations of the State are inexcusable under any circumstance makes any breach even more relevant to how inter-State relations are to be conducted. Even if the ICC is seen as the closest the international community has been to the "realization of a cosmopolitical social contract, in that it proposes to put the sanctioning of certain international crimes that endanger the very survival of humanity above any contingent sovereign interests",312 the primary aim is still the benefit of the majority. It is therefore imperative for the ICC to abstain from intervening in a particular case when, in the political phase of the procedure, it is established that the interests of international peace and security (e.g. national democratic transition processes) should be given preference over the adjudication of individual criminal responsibility.313
The content of the decisions on admissibility by the Court must be politically impartial and unbiased to avoid extending its effects beyond the sole ascription of criminal responsibility. Even more prudence must be shown if the person to be tried is a head of State or a high-profile official, since the Court’s decisions could influence national policies. These are the responsibilities of the ICC. Its powers have been entrusted to the Institution for the exclusive and responsible exercise of judicial competence and the determination of individual criminal responsibility. The State is not an eligible subject for a formal or political ‘trial’ before the ICC for the crimes allegedly committed by any individual. For the breach of international obligations, mechanisms to correct and repair the damage can be triggered by a vast number of human rights institutions.
In this interactive system between international human rights and criminal law, the correct timing –social, legal and political— for the intervention of the ICC will be of crucial importance for its success. The institutional future of the Court "will depend partly on how well the ICC fares in its first years, and whether it can build a capital of trust based on reasonableness, minimal diplomatic flair, and a sense of historical purpose".314
Notes
* Attorney-at-Law; LLB (Hons)(Iberoamericana), LLM (Nottingham), PhD (Hull). Dedicated to Edith Laurent. I am deeply indebted to Professor Roger S. Clark (Rutgers School of Law) and Diego A. Rodríguez-Pinzon (American University) for their invaluable comments on an earlier draft. My appreciation to Doctor Lindsay Moir (University of Hull), for his precise observations and intellectual motivation. I have tried to state the law and facts to the best of my knowledge, as they stood in September 2004. Any omissions and errors contained in this text are mine alone. All website hyperlinks were active at the time of printing.
1 July 17th Marks World Day for International Justice: Activists Worldwide Celebrate the Effort to End Impunity (July 17 2003), paragraph 1. CICC, Media Statement [Online: http://www.iccnow.org/pressroom/ciccmediastatements.html]. Rome Statute of the International Criminal Court, Document A/CONF.183/9 (July 17 1998). ICC [Online: http://www.un.org/law/icc/index.htm]. Also published in 37, No. 5, I. L. M. 1002 (September 1998). Hereinafter referred to as ICC/Rome Statute.
2 The Prosecutor was elected by the Assembly of States Parties (ASP) on April 2003, taking office on June 16 2003. See International Criminal Court Prosecutor to "Follow Closely Situation in the Democratic Republic of Congo: Of 499 Communications, One Situation to be Examined for possible Further Action" (July 16 2003), CICC, Media Statement; and Solemn undertaking of the Prosecutor (The Hague, May 23 2003), ICC, Media Alert [Online: http://www.iccnow.org/pressroom/ciccmediastatements.html and http://www.icc-cpi.int/php/news/latest.php].
3 Prosecutor will comment on communications received, ICC Press Release No. pids.008.2003-EN (15 July 2003), p. 2. ICC [Online: http://www.icc-cpi.int/php/news/details.php?id=17]. Note: By July 16 2003 several high positions within the OTP were still available according to the candidatures opened by the ICC.
4 Communications Received by the Office of the Prosecutor of the ICC, ICC Press Release No. pids.009.2003-EN (16 July 2003), p. 2. ICC [Online: http://www.icc-cpi.int/php/news/details.php?id=17].
5 ICC Press Release No. pids.008.2003-EN (15 July 2003).
6 Idem.
7 It is significant that not any State Party has made a situation referral regarding a third State. Equally, the UN-SC has not submitted any proposal for the consideration of the Court. The decision to opt for the DRC conflict was initially taken after the ICC evaluated the cases proposed mainly by individuals and human rights NGOs. The vast number of referrals has been diverse, mainly out of the jurisdictional scope of the ICC (e.g. environmental damage, drug trafficking, money laundering, even tax evasion and judicial corruption. The Iraq, Ivory Coast and the Israel-Palestine conflicts have also been brought to the attention to the Court). Regarding the DRC, six communications were received including two reports presented by undisclosed NGOs. According to the ICC, the information has been corroborated by reports elaborated by national, non-governmental and media organisations. The reports resulting from the four missions sent by the UN-SC to the DRC have also been taken into account. The efforts of the transitional Government that was established (Government of National Unity and Transition, 30 June 2003) to restore the rule of law have, and will continue to be, assessed. See ICC Press Releases No. pids.009.2003-EN (16 July 2003) and No. pids.008.2003-EN (15 July 2003). See also Security Council Extends Democratic Republic of Congo Mission Until 30 July 2004, Raises Troop Level to 10,800, UN-SC Press Release SC/7828 (28 July 2003). UN [Online: http://www.un.org/News/Press/docs/2003/sc7828.doc.htm].
8 UN-SC Resolution S/RES/1493 (28 July 2003), Preamble, paragraph 2. UN [Online: http://www.un.org/Docs/sc/unsc_resolutions03.html].
9 Ibidem, paragraph 11.
10 See Secretary-General Congratulates Security Council on Giving MONUC Strong Mandate to Fulfil Difficult Mission in Democratic Republic of Congo, UN-GA Press Release SG/SM/8795, SC/7829, AFR/678 (28 July 2003). UN [Online: http://www.un.org/News/Press/docs/2003/sgsm8795.doc.htm].
11 See President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC (29 January 2004), ICC Press Release. ICC [Online: http://www.icc-cpi.int/php/news/latest.php].
12 Statement by the Prosecutor Related to Crimes Committed in Barlonya Camp in Uganda, ICC-OTP Press Release No. pids.002.2004-EN (23 February 2004). ICC [Online: http://www.icc-cpi.int/php/news/latest.php]. Note: The official announcement of the investigation of the Ugandan situation (due to ‘reasonable basis’), was made until July 29 2004. In the end, the intervention of the ICC regarding the DRC situation was delivered earlier (June 23 2004). See Prosecutor of the International Criminal Court opens an investigation into Northern Uganda, ICC-OTP Press Release (July 29 2004). ICC [Online: http://www.icc-cpi.int/newspoint/pressreleases.html].
13 Eventually, on April 19 2004, the President of the DRC referred to the OTP "the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC". Previously, in September 2003, the Prosecutor had informed the ASP "that a referral and active support from the DRC would facilitate the work of the Office of the Prosecutor". After the situation and subsequent possible acceptance of the case were evaluated, on June 23 2004 the OTP decided, in the interests of justice and of the victims, "to open an investigation" for the DRC. From July 26-30 2004, the OTP and Registry organised the first official visit to the DRC, meeting with senior political and judicial Congolese officials. Prosecutor Receives Referral of the situation in the Democratic Republic of Congo (19 April 2004), ICC Press Release. See also The Office of the Prosecutor of the International Criminal Court opens its first investigation (23 June 2004), ICC-OTP Press Release, paragraph 1; and First Mission to the Democratic Republic of Congo, ICC-OTP Press Release (30 July 2004). ICC [Online: http://www.icc-cpi.int/newspoint/pressreleases.html].
14 Lara A. Ballard, "The Recognition and Enforcement of International Criminal Court Judgments in U.S. Courts", 29 Columbia Human Rights Law Review (Fall 1997), 143-219, p. 191. LexisNexis [Online: http://web.lexis-nexis.com/professional/].
15 According to Schabas, "as human rights tribunals, the ad hoc tribunals should be aware that they are mandated to provide a model of enlightened justice. Judges around the world, sitting in the most mundane criminal cases, will be influenced by their approaches to criminal law. Wrong or even confusing signals from The Hague and Arusha may set human rights back decades, within the context of criminal justice". William A. Schabas, "Sentencing by International Tribunals: A Human Rights Approach" (Symposium: Justice in Cataclysm–Criminal Trials in the Wake of Mass Violence), Volume 7, No. 2, Duke Journal of Comparative & International Law (Spring 1997), 461-517, p. 516.
16 In States of Emergency when the life, independence or security of the Nation are threatened, the State may legitimately take necessary measures to derogate from its obligations in order to restore the rule of law (Articles 4 ICCPR, 15 ECHR and 27 ACHR). Some other rights can be subject to restrictions for the protection of national security, ordre public, morals, public safety or health, like freedom of expression (Article 19 (2) and (3) ICCPR), right to assembly (Article 11 (1) and (2) ECHR), and freedom of association (Article 16 (1), (2) and (3) ACHR).
17 This point of view is shared by Meron, who has claimed "...some human rights are obviously more important than other human rights". Theodor Meron, "On a Hierarchy of International Human Rights", American Journal of International Law, Volume 80 (January 1986), 1-23, p. 4.
18 Articles 9, 10, 14, 15, 26 ICCPR; Articles 3, 5, 6, 7 ECHR; 5, 8, 9, 10 ACHR; and 5, 7, 8, 10 and 11 UDHR, regarding fair trial and other guarantees related to criminal procedure.
19 In the Preamble of the UDHR, UN Member States "pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms" (Paragraph 6).
20 Article 1 (3) of the UN Charter sets as one of the purposes of the UN "promoting and encouraging respect for human rights and for fundamental freedoms for all". In the same terms are drafted the ICCPR (Preamble, paragraph 4), ECHR (Preamble, paragraph 2, and Article 1), and ACHR (Article 1).
21 See Subrata Roy Chowdhury, Rule of Law in a State of Emergency (Great Britain: Pinter Publishers, 1989), p. 147.
22 In order to eradicate impunity, the State apparatus is obliged to preserve the rule of law and guarantee adequate administrative and judicial action in cases of breach of the legal order. On the denial or lack of criminal proceedings, see further infra Part I.
23 The failure of the domestic judicial systems is not a requisite of admissibility for the ad hoc tribunals to exercise jurisdiction. In 1994, the ICTY requested the Federal Republic of Germany the referral of the proceedings against Duško Tadi?. The Prosecutor had not "sought to bring Appellant before the International Tribunal for a new trial for the reason that one or the other of the conditions enumerated in Article 10 [ICTY Statute] would have vitiated his trial in Germany. Deferral of the proceedings against Appellant was requested in accordance with the procedure set down in Rule 9 (iii)" [Rule 9 (iii) RPE ICTY, establishes that a request for referral can be made if what is in issue "is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal"]. The dictum on the motion on jurisdiction concluded the "crimes which the International Tribunal has been called upon to try are not crimes of a purely domestic nature. They are really crimes which are universal in nature, well recognized in international law as serious breaches of international humanitarian law, and transcending the interest of any one State. The Trial Chamber agrees that in such circumstances the sovereign rights of States cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nations of the world. There can therefore be no objection to an international tribunal properly constituted trying these crimes on behalf of the international community". Prosecutor v. Duško Tadi?, aka "Dule", Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), Appeals Chamber, paragraph 52; and Decision on the Defence Motion on Jurisdiction (10 August 1995), Trial Chambers Decision (IT-94-1-T), paragraph 42, respectively. André Klip and Göran Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals (Volume 1: The International Criminal Tribunal for the Former Yugoslavia 1993-1998) (Antwerp: Intersentia, 1999), p. 52.
24 Sustainable Development has been considered by Colin Powell, United States Secretary of State, as a "compelling moral and humanitarian issue" related to world stability. UN Press Release UNEP/117 (5 August 2002), ‘Sustainable Development Security Imperative’ says top United States Government Official. UN [Online: http://www.un.org/News/Press/docs/2002/unep117.doc.htm].
25 Separate to the issue of responsibility of the State derived from the non-compliance of international obligations, is the ‘responsibility’ of the State derived from the crimes committed by individuals. In this sense, during the meetings of the PrepCom and the negotiations held at the Rome Conference, State responsibility for reparations to victim/s as a result of the responsibility of individuals was discussed. Fierce opposition to the concept of awards against States was forwarded on the grounds that the ICC was intended to deal with individual criminal responsibility exclusively: "if awards of reparations could be made against States, the principle of individual responsibility would have become meaningless". In the end, no reference to State responsibility was included in Article 75, ICC Statute, so reparations may be ordered directly against convicted individuals (or made through the ICC Trust Fund, Article 79). For an account on the process of defining the mechanisms for the reparation of victims as included in the final text of the ICC Statute, see further Christopher Muttukumaru, "International Criminal Procedures - V. Reparation to Victims", in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 262-270, p. 268.
26 The exception in which the effects are minimised is when preliminary investigations or subsequent decisions on admissibility are prompted by the referral of the case by the State itself (Article 14 ICC Statute), acknowledging (a) its own inability to investigate/prosecute, and (b) the benefits of the intervention of the ICC (Ugandan and DRC situations). See supra Preliminary Comments.
27 The provision of fair trial as contained in human rights documents includes different guarantees apart from those mentioned (presumption of innocence, legal assistance or revision of sentence). For a detailed analysis of the content and extent of such rights, see Richard Clayton and Hugh Tomlinson, Fair Trial Rights (U.S.A.: Oxford University Press, 2001), pp. 88-89. The normative framework regarding fair trial according to the ICCPR and the ACHR is similar.
28 Liberal States "believe, with varying degrees of intensity and seriousness, in universal rights. Such states also have well-established judicial systems and domestic norms of non-violent contestation in politics. From such peaceful ways of politics and tribunals, liberal leaders learn a respect for due process". The degree of conviction of the State to promote and respect human rights is what differentiates the contributions it makes to international justice, since there are liberal States that "so often fail to pursue war crimes tribunals". See Gary Jonathan Bass, Stay the Hand of Vengeance, The Politics of War Crimes Tribunals (U.S.A.: Princeton University Press, 2000), pp. 20 and 28.
29 Legalism, according to Bass, relies on the belief that it is right to prosecute war criminals. Legalism "manifests itself as a fixation on process, a sense that international trials must be conducted roughly according to well-established domestic practice —not just rule-following, but rule-following when it comes to war criminals—". Bass (2000), pp. 7, 20 and 24.
30 Clayton and Tomlinson (2001), p. 2.
31 Idem.
32 Christoph J. M. Safferling, Towards an International Criminal Procedure (Great Britain: Oxford University Press, 2001), p. 21.
33 Ibidem, p. 20.
34 Case of Golder v. The United Kingdom, Judgment (21 February 1975) (Application No. 4451/70), paragraph 35. ECourtHR [Online: http://www.echr.coe.int/Eng/Judgments.htm]. Note: Emphasis added.
35 Articles 2 (3) ICCPR, 13 ECHR and 25 ACHR.
36 General Comment 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant (4 November 1994), HRC, paragraph 11. UN-OHCHR [Online: http://www.unhchr.ch/tbs/doc.nsf].
37 General Comment 29, State of Emergency (Article 4) (31 August 2001), CCPR/C/21/Rev.1/Add.11, HRC, paragraph 14. UN-OHCHR [Online: http://www.unhchr.ch/tbs/doc.nsf]. Note: Emphasis added.
38 Case of Golder v. The United Kingdom, Judgment (21 February 1975), paragraph 35.
39 Case of Deweer v. Belgium, Judgment (27 February 1980) (Application No. 6903/75), paragraph 49. ECourtHR [Online: http://www.echr.coe.int/Eng/Judgments.htm].
40 The duty to investigate "is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective". Velázquez Rodríguez case, Judgment (July 29 1988), Series C, No. 4, Inter-American Court of Human Rights, paragraphs 176 and 177. OEA [Online: http://www.corteidh.or.cr/seriecing/index_serie_c_ing.html].
41 Advisory Opinion OC-9/87, Judicial guarantees in states of emergency (arts. 27 (2), 25 and 8 American Convention on Human Rights) (October 6 1987), Requested by the Government of Uruguay, Inter-American Court of Human Rights, paragraph 24. IACHR [Online: http://www.corteidh.or.cr/serie_a_ing/index.html]. Note: Emphasis added.
42 Advisory Opinion OC-8/87, Habeas corpus in emergency situations (arts. 27 (2), 25 (1) and 7 (6) American Convention on Human Rights) (January 30 1987), Inter-American Court of Human Rights, paragraph 26. IACHR [Online: http://www.corteidh.or.cr/serie_a_ing/index.html].
43 Article 2 of the ICCPR establishes mainly the general obligations acquired by the States parties to the treaty, and the compromise to take legislative measures to adopt the provisions of the Covenant, and to provide with effective remedies. General Comment 3, Implementation at the national level (Art. 2) (29 July 1981), paragraph 1. UN-OHCHR [Online: http://www.unhchr.ch/tbs/doc.nsf]. Note: Emphasis added.
44 Notably, not all human rights violations perpetrated during a criminal procedure would legitimate the intervention of the ICC. The institutional legal framework of the ICC is not that of an ombudsman concerned with human rights violations in general. Only human rights transgressions that translate into impunity due to the protection or shielding of the offender by the State, when grave international crimes under the jurisdictional scope of the ICC have been committed, would fall within the Court’s ambit of competence if the interests of justice so require.
45 See Principles 4, 10, 11, 17, 32(1) and 36. UN-GA Resolution A/RES/43/173 (December 9 1988), Annex: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. UN [Online: http://www.un.org/documents/ga/res/43/a43r173.htm].
46 Peter H. Kooijmans, "In the Shadowland between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process", in Astrid J.M. Delissen and Gerard J. Tanja (eds.), Humanitarian Law of Armed Conflict, Challenges Ahead, Essays in Honour of Frits Kalshoven (The Netherlands: Martinus Nijhoff Publishers, 1991), 225-247, p. 239.
47 International catalogues on human rights have provided some guidance, although with some discrepancies, about which rights are to be considered non-derogable even if a case of public emergency is declared. The hardcore of non-derogable rights common to all three conventions (ICCPR, ECHR and the ACHR), are the ones related to the right to life; right to a humane treatment and the prohibition from cruel, inhuman or degrading punishment; freedom from slavery; and freedom from ex post facto laws. Some other guarantees are included in one but not the other documents. Interestingly, none of them included Articles 14, 8 and 6, respectively, on the right to a fair trial. See Articles 4, 6, 7, 8 (1) and (2), and 15 ICCPR; 2, 3, 4 (1), 7 and 15 ECHR; and 4, 5, 6, 9 and 27 ACHR.
48 Theodor Meron, "On a Hierarchy of International Human Rights", American Journal of International Law, Volume 80 (January 1986), 1-23, p. 11.
49 Kooijmans (1991), p. 238. As a precedent, see also analysis and discussion on the non-derogability of the right to a fair trial (ICCPR), according to Article 7 of the Paris Minimum Standards of Human Rights Norms in a State of Emergency, advanced in 1984 by the Enforcement of Human Rights Law Committee of the International Law Association (ILA). Subrata Roy Chowdhury, Rule of Law in a State of Emergency (Great Britain: Pinter Publishers, 1989), pp. 203-219.
50 See the notifications submitted by Nicaragua (1982-1987), Poland (1982), Sri Lanka (1984), Trinidad and Tobago (1990) and the United Kingdom (1976-1984), regarding derogation from Article 14 of the ICCPR during situations of public emergency (Article 4 ICCPR). ICCPR, Declarations and Reservations, United Nations Treaty Collection [As of 5 February 2002], Notifications under Article 4(3) of the Covenant (Derogations). UN [Online: http://www.unhchr.ch/html/intlinst.htm].
51 The most common provisions that are derogated during states of emergency are related to arrest and detention powers (Article 9), liberty of movement (Article 12), freedom of expression (Article 19), right of assembly (Article 21) and freedom of association (Article 22). In 2001, derogation from Article 14 ICCPR was not considered necessary by the United Kingdom to deal with the public emergency derived from the threat of international terrorism (in relation to the ‘September 11’ attacks). Ibidem, List of State Notifications.
52 General Comment 29, State of Emergency (Article 4), paragraph 15.
53 Ibidem, paragraph 16.
54 Advisory Opinion OC-8/87, Habeas corpus in emergency situations (arts. 27 (2), 25 (1) and 7 (6) American Convention on Human Rights), paragraph 36. Note: Emphasis added.
55 Advisory Opinion OC-9/87, Judicial guarantees in states of emergency (arts. 27 (2), 25 and 8 American Convention on Human Rights), paragraph 25.
56 Ibidem, paragraph 29.
57 Note: Emphasis added.
58 Philip Alston, "Conjuring Up New Human Rights: A Proposal for Quality Control", American Journal of International Law, Volume 78, No. 3 (July 1984), 607-621, p. 615.
59 According to Meron, "at least the core of a number of the due process guarantees stated in Article 14 of the Covenant [ICCPR] have a strong claim to customary law status". Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Great Britain: Oxford University Press, 1989), p. 96.
60 Ratification status of the treaties. See UN-OHCHR (ICCPR), European Court of Human Rights (ECHR) and OAS (ACHR) [Online: http://www.unhchr.ch/html/intlinst.htm, http://www.echr.coe.int/Eng/General.htm and http://www.oas.org, respectively].
61 Safferling (2001), p. 35.
62 General Comment 26, Continuity of obligations (8 December 1997), HRC, paragraphs 1, 2 and 3. UN-OHCHR [Online: http://www.unhchr.ch/tbs/doc.nsf].
63 Ibidem, paragraph 4.
64 See Safferling (2001), pp. 39-42.
65 Prosecutor v. Duško Tadi?, aka "Dule", Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), B. Sovereignty of States, paragraph 41, Decisions and Orders. ICTY [Online: http://www.un.org/icty/ind-e.htm].
66 Ibidem, paragraph 45.
67 Judge Rustam S. Sidhwa, Prosecutor v. Duško Tadi?, aka "Dule", Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), paragraph 87. ICTY [Online: http://www.un.org/icty/ind-e.htm]. Note: Emphasis added.
68 Prosecutor v. Slobodan Milosevic (Case No. IT-02-54), Transcripts, Kosovo, Croatia, Bosnia Herzegovina (3 July 2001), p. 2. ICTY [Online: http://www.un.org/icty/latest/index.htm]. Note: Emphasis added.
69 In order to ensure the right to a fair trial for the defendant, the right to self-representation has been recognised in the past by the regulatory provisions of the Nuremberg IMT, a judicial organ reminiscing international justice. Article 16 (d) stated: "A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel". Charter of the International Military Tribunal [Online: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm].
70 Rule 74, RPE ICTY, Amicus Curiae: "A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber". ICTY [Online: http://www.un.org/icty/basic.htm]. Rule 103 (1) of the Rules of Procedure and Evidence of the ICC also incorporated the figure of the amici curiae for the benefit of all the parties involved in the proceedings held before the Court.
71 Registrar Instructed to Appoint Counsel for the Accused, Milosevic case, Press Release CC/P.I.S./889-e (2 September 2004). ICTY [Online: http://www.un.org/icty/index.html]. Note: The decision took into account the fragile health status of the defendant.
72 General Comment 29, State of Emergency (Article 4), paragraph 11.
73 Idem.
74 Idem.
75 Idem. Note: Emphasis added.
76 Article 53 of the Vienna Convention on the Law of Treaties defines jus cogens "as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character".
77 Meron (January 1986), p. 22.
78 The establishment of the ICC has been considered as the culmination of the efforts of the international community on ICL. However, the adoption of the ICC Statute should be taken not as a final result but only as a beginning. The Court faces ahead a period of legal and practical adjustment in which its viability and operability shall be tested. See Kriangsak Kittichaisaree, International Criminal Law (U.S.A.: Oxford University Press, 2001), p. 28.
79 Kooijmans (1991), p. 235.
80 For a full comment and text of the resolution of the Institute of International Law, see Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (Great Britain: Oxford University Press, 2000), pp. 141-145.
81 As referenced by Ragazzi (2000), pp. 141 and 142.
82 Ibidem, p. 142. Note: Emphasis added.
83 See Article 2 of the ICCPR, and Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (May 5 2003), CCPR/C/74/CRP.4/Rev.3 (General Comment), HRC, paragraph 1bis. UN-OHCHR [Online: http://www.unhchr.ch/tbs/doc.nsf].
84 Ibidem, paragraph 3.
85 Ibidem, paragraph 4.
86 Even if the legal experience of international criminal tribunals is still developing, the theory of the subject matter legitimating these organs —i.e. criminal law— is an inherent aspect of the State’s exercise of power and commitment to the maintenance of the rule of law. See Alston (July 1984), p. 614.
87 Advisory Opinion OC-16/99, The right to information on Consular assistance in the framework of the guarantees of the due process of law (October 1 1999), Requested by the United Mexican States, Inter-American Court of Human Rights, paragraph 117. IACHR [Online: http://www.corteidh.or.cr/serie_a_ing/index.html].
88 Idem.
89 Demands to recognise the right to sleep; the right not to be killed in a war; the right not to be exposed to excessively and unnecessarily heavy, degrading, dirty and boring work, and the right to social transparency, have been presented by Galtung and Wirak, UNESCO, Doc. SS-78/CONF.630/4, p. 4. As cited by Alston (July 1984), p. 610.
90 Michail Wladimiroff, Appointed Amicus Curiae in the case Prosecutor v. Slobodan Milosevic, by the ICTY. Challenges for Defence Lawyers Taking Cases for an International Tribunal, p. 1 [Copy from the Author, Salzburg Law School on International Criminal Law] (August 14 2002, Salzburg, Austria).
91 A high standard of proof is necessary to optimise the protection of the political structure of the State. See infra Section 3.
92 It is of the most importance that a trial by an international criminal court "is not only fair, but it is also seen to be fair". Wladimiroff (2002), p. 7.
93 Immi Tallgren, "The Sensibility and Sense of International Criminal Law", European Journal of International Law, Volume 13, No. 3 (April 2002), 561-595, p. 562. Note: Emphasis added.
94 Ibidem, p. 562.
95 UN-SC Press Release SC/7445 (10 July 2002), Security Council Debate Focuses on World Court with Mission Renewal in Question, Member States Raise Concern over Future of Peacekeeping, Statements. UN [Online: http://www.un.org/News/Press/docs/2002/SC7445.doc.htm].
96 United States Efforts to Undermine the International Criminal Court: Article 98 (2) Agreements, Human Rights Watch (July 9 2002), p. 2. HRW, The United States and the International Criminal Court [Online: http://www.hrw.org/campaigns/icc/us.htm#Related%20Documents].
97 HRW has declared that the American anti-ICC position has "only serve to align the U.S. with pariah states of the international criminal justice system (for example, Libya)". The United States and the International Criminal Court, paragraph 8. HRW [Online: http://www.hrw.org/campaigns/icc/us.htm].
98 International relations bear a ‘political charge’, when it is understood that politics confront ethics, pragmatics, normative standards and considerations of national identity. Even if the concept of politics has always been at the centre of heated debate, Reus-Smit adequately considers that "political relations between states or other actors are frequently cast as fundamentally different from other social, economic, legal or moral relations, but what makes these relations so distinctive is seldom explained. Central yet amorphous, politics most often appears as a struggle for material power, rational utility maximisation, formal relations between duly constituted ‘political’ actors, or all three mixed into an inconsistent and frequently conceptual cocktail". See Christian Reus-Smit, "The Strange Death of Liberal International Theory", European Journal of International Law, Volume 12, No. 3 (June 2001), 573-594, pp. 575 and 576.
99 United States Efforts to Undermine the International Criminal Court: Article 98 (2) Agreements, HRW, p. 2.
100 See infra Section 3.
101 According to Articles 17 and 20, ICC Statute.
102 Articles 18, 19, 54, 86 and 87 (1), ICC Statute. See the proceedings related to the DRC and Ugandan situations dealt with by the ICC.
103 UN-GA Press Release SG/SM/8372, L/3015 (10 September 2002), Kofi Annan, International Criminal Court ‘Is not —and must never become— an organ for political witch hunting’, Secretary-General tells States Parties. UN [Online: http://www.un.org/News/Press/docs/2002/sgsm8372.doc.htm].
104 Kenneth Roth, Executive Director Human Rights Watch, International Criminal Court, Assembly of States Parties (September 9 2002), paragraph 7. HRW [Online: http://hrw.org/campaigns/icc/docs/ken-icc0909.htm].
105 The United States and the International Criminal Court, HRW, paragraph 3.
106 By a Communication received on May 6 2002, the Government of the United States of America notified the UN Secretary-General: "This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, 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 on December 31, 2000. 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". United States of America, Ratification Status of the Rome Statute, Note 6. ICC [Online: http://www.un.org/law/icc/index.html].
107 Michael Posner, Executive Director of the Lawyers Committee for Human Rights, Un-signing the International Criminal Court Treaty is Practically Insignificant and Politically Counterproductive, Statement (6 May 2002), paragraph 2. CICC [Online: http://www.iccnow.org/html/press.html].
108 Kenneth Roth, Executive Director of Human Rights Watch, United States ‘Unsigning’ Treaty on War Crimes Court, White House Move is ‘On the Wrong Side of History’ (6 May 2002). HRW Release on US Unsigning, paragraph 3. CICC [Online: http://www.iccnow.org/html/press.html].
109 The Peacekeeping Missions in which the U.S.A. is actively involved are UNTSO (Middle East), UNOMIG (Georgia), UNMIK (Kosovo), UNMISET (East Timor), UNMIL (Liberia), MONUC (Democratic Republic of Congo), UNMEE (Ethiopia and Eritrea), UNAMSIL (Sierra Leone) and MINURSO (Western Sahara). See United Nations Peacekeeping [Online: http://www.un.org/Depts/dpko/dpko/home.shtml].
110 Yugoslavia ratified on 6 September 2001, and Bosnia Herzegovina on 11 April 2002. For the ratification status of other States where UN Peacekeeping Missions are taking place, see further Ratification Status. ICC [Online: http://www.icc-cpi.int/statesparties.html].
111 Article 12 (2), ICC Statute.
112 Misleadingly, the media has started propagating the idea in the public opinion that the ICC will prosecute "only systematic and large-scale war crimes". The premise that the Court has jurisdiction over war crimes, ‘in particular’ when committed as part of a policy or in a large-scale, evidently addresses prosecutorial discretion and does not exclude other situations. See James Bone, "US threat to block Bosnian mission" (British Newspaper The Times, Monday July 1 2002), Overseas News, p. 13. Note: Emphasis added. Article 8 (1), ICC Statute.
113 Oliver Burkeman, "US veto puts Bosnia mission in jeopardy" (British Newspaper The Guardian, Monday July 1 2002), p. 1.
114 Idem.
115 On the different positions of States see UN Preparatory Commission for an ICC Press Release L/3008 (3 July 2002), Preparatory Commission for International Criminal Court ‘Deeply Concerned’ at Security Council Developments Regarding Court and Peacekeeping. See also the list compiled by the CICC regarding the position of States on the matter. Government Responses to US-Proposed Security Council Resolution on ICC and Peacekeeping Special Plenary Session, Preparatory Commission for the ICC, 3 July 2002 (Over 100 Governments take a Stand Against US Proposals-Chart (3 July 2002) [Online: http://www.un.org/News/Press/docs/2002/l3008.doc.htm and http://www.iccnow.org/html/press.html, respectively].
116 Secretary-General Kofi Annan appealed to the SC members "to intensify the high-level negotiations... to find a solution acceptable to all concerned that respected the principles of the Charter of the United Nations and treaty obligations of Member States. The world could not afford a situation in which the Council was deeply divided on such an important issue". UN-SC Press Release SC/7437 (30 June 2002), Security Council Rejects Draft Proposing Extension of United Nations Mission in Bosnia and Herzegovina, Statement. UN [Online: http://www.un.org/News/Press/docs/2002/SC7437.doc.htm].
117 UN-SC Resolution S/RES/1422 (12 July 2002), Section 1. UN [Online: http://www.un.org/Docs/scres/2002/sc2002.htm]. For a sequence of the decisions adopted by the SC, see also Resolutions S/RES/1418 (21 June 2002), S/RES/1420 (30 June 2002), S/RES/1421 (3 July 2002), and S/RES/1423 (12 July 2002).
118 See UN-SC Resolution S/RES/1487 (2003) (12 June 2003). UN [Online: http://www.un.org/Docs/sc/unsc_resolutions03.html].
119 UN-SC Press Release SC/7445 (10 July 2002).
120 Idem.
121 Idem.
122 European Union Parliament, Joint Motion for a Resolution on the General Affairs Council’s Position Concerning the International Criminal Court (24 October 2002). European Union [Online: http://www.europarl.eu.int/press/index_en.htm].
123 UN-SC Press Release SC/7445 (10 July 2002), Statements: Ellen Margrethe Løj, Representative of Denmark.
124 Ana Palacio, Ministra de Asuntos Exteriores, España, "La Unión Europea, Estados Unidos y la Corte Penal Internacional" (Spanish Newspaper ABC, 29 October 2002) (Opinión-Colaboraciones), paragraphs 5 and 6. ABC [Online: http://www.abc.es/opinion/index_asp.asp?dia=29102002]. Note: Translation from Spanish by the present author.
125 UN-SC Press Release SC/7445 (10 July 2002), Statements.
126 The information passed on by the media, influenced by the opinions expressed in the international forum by the representatives of many UN Member Parties, is in the frame that "if Americans were accused of such crimes abroad the court could only act if its prosecutors could prove that the US judicial system was ‘unable or unwilling’ to prosecute American forces: a legal test any moderately well-functioning democracy would be unlikely to fail". See Oliver Burkeman and Richard Norton-Taylor, "Newborn world court fights for survival" (British Newspaper The Guardian, Monday July 1 2002), International News, p. 15.
127 See UN-GA Press Release SG/SM/8749 SC/7790 (12 June 2003), In Statement to Security Council, Secretary-General Voices Concerns Over Extending UN Peacekeepers’ Immunity from ICC Action. UN [Online: http://www.un.org/News/Press/docs/2003/sgsm8749.doc.htm].
128 Argentina, Brazil, Cameroon, France, Germany, Netherlands, New Zealand, EU Countries and the Rio Group are some of the nations that expressed their opposition. Excerpts from the Public Meetings at the United Nations Security Council on the Renewal of Resolution 1422. CICC [Online: http://www.iccnow.org/documents/otherissues1422.html].
129 For a theoretical analysis of the circumstances of admissibility of cases by the ICC concerning investigations and prosecutions for crimes allegedly perpetrated by American peacekeeping personnel, see Jimmy Gurulé, "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions?", Cornell International Law Journal, Volume 35 (2001-2002), 1-45, pp. 19-30.
130 USUN Press Release #85 (03) (June 12 2003), Statement by Ambassador James Cunningham, Deputy United States Representative to the United Nations, on the Renewal of Resolution 1422, Security Council, June 12, 2003. CICC [Online: http://www.iccnow.org/documents/otherissues1422.html].
131 UN-SC Resolution S/RES/1497 (1 August 2003). UN [Online: http://www.un.org/Docs/sc/unsc_resolutions03.html].
132 It was recorded that Yvonne Terlingen, Amnesty International representative at the UN, considered the language of the SC Resolution "would effectively shelter genocide, crimes against humanity and war crimes with impunity". William Pace, Convenor of the CICC, manifested deep concern by the "U.S. initiated provision granting exclusive jurisdiction and permanent ICC exemption for its personnel deployed in Liberia". See NGOs Condemn Broad Immunities in Security Council Resolution on Multinational Deployment to Liberia, U.S. Arm-Twisting Leads to Violations of National and International Law, NGOs Say (1 August 2003). CICC [Online: http://www.iccnow.org/pressroom/ciccmediastatements.html].
133 According to the text of the Resolution, "current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by the contributing State". France, Germany and Mexico abstained, due to the inclusion of operative paragraph 7, which was in contradiction of their national laws. UN-SC Resolution S/RES/1497 (1 August 2003), paragraph 7. See also UN-SC Press Release SC/7836 (1 August 2003), Security Council Authorizes Multinational Force to Support Ceasefire in Liberia. UN [Online: http://www0.un.org/apps/press/searchAr.asp].
134 After the adoption of Resolution S/RES/1497, Kofi Annan, UN Secretary-General, expressed: "frankly my sentiments are with those countries that abstained". Again, the statement, more of a political nature, lacked clear decisiveness. NGOs Condemn Broad Immunities in Security Council Resolution on Multinational Deployment to Liberia, U.S. Arm-Twisting Leads to Violations of National and International Law, NGOs Say (1 August 2003).
135 David Donat-Cattin, "Decision Making in the International Criminal Court: Functions of the Assembly of States Parties and Independence of the Court’s Judicial Organs", p. 1 [To be published in Lattanzi & W. Schabas, Essays on the Rome Statute of the International Criminal Court (Ripa di Fagnano Alto, Il Sirente, Volume II, 2002)] [Copy from the Author] (August 7 2002, Salzburg, Austria).
136 Ibidem, pp. 4 and 5.
137 See Articles 36 (2), 42 (4) and 112 (2), (b), (d), (e), (f) and (g), and (8), ICC Statute.
138 British Government Press Release, UK Ratifies the Rome Statute of the International Criminal Court (4 October 2001), Note for Editor 2. Foreign & Commonwealth Office. The UK became the 42nd State to ratify the Rome Statute on 4 October 2001. States Parties, ICC [Online: http://www.icc-cpi.int/php/statesparties/allregions.php].
139 Donat-Cattin (2002), pp. 17 and 18.
140 Presidential Statement by former President Clinton (31 December 2000), cited by David J. Scheffer, "Staying the Course with the International Criminal Court", Cornell International Law Journal, Volume 35 (2001-2002), 47-100, p. 64. For a comment on the conditions leading to the U.S.A. signature, see also pp. 55-68. Note: Emphasis added.
141 The Need for an Effective and Committed Assembly of States Parties, Observations and Recommendations, Preliminary Discussion Paper, 2nd Session of the Assembly of States Parties, 8-12 September 2003, CICC Budget and Finance Team and Secretariat, p. 8. CICC [Online: http://www.iccnow.org/documents.html].
142 See Gary Jonathan Bass, Stay the Hand of Vengeance, The Politics of War Crimes Tribunals (U.S.A.: Princeton University Press, 2000), pp. 28, 31 and 33.
143 Dr. Richard Edwards AM, Chair of the Environment, Transport and Planning Subject Committee of the Welsh Labour Party, made several declarations before the media in the context of the sessions of the Welsh Labour Party Conference held on February 28 2003. "Blair to address Conference" (British BBC News UK Edition, Friday February 28 2003) [Online: http://news.bbc.co.uk/1/hi/wales/2806751.stm]. See also Welsh Labour [Online: http://www.waleslabourparty.org.uk/preselipembs/am.html].
144 Jamie Lyons, "Blair «should face war crimes charges»" (PA British News, Friday February 28 2003). ICWales.co.uk [Online: http://icwales.icnetwork.co.uk/0100news/].
145 Dr. Edwards argued that the British Prime Minister "could not remain Labour leader if he went to war in support of the United States" suggesting that it would be then a matter of the competence of the International Criminal Court. Shaun Ley, BBC Political Correspondent, "Don’t mention the war in Wales" (British BBC News UK Edition, Friday 28 February 2003) [Online: http://news.bbc.co.uk/1/hi/wales/2809101.stm]. Also BBC News and ITN News Broadcast, British Television (Friday February 28 2003), 19:00 and 20:00, respectively.
146 Article 14 (1), ICC Statute, reads: "A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes".
147 According to the OTP, by 16 July 2003 a total of 499 cases had been proposed by a broad diversity of actors. Communications Received by the Office of the Prosecutor of the ICC, ICC Press Release No. pids.009.2003-EN (16 July 2003). ICC-OTP [Online: http://www.icc-cpi.int/php/news/latest.php].
148 Articles 11-21, ICC Statute and Rules 44-62, RPE.
149 Article 21 (2), ICC Statute, establishes that the Court "may apply principles and rules of law as interpreted in its previous decisions". Exhaustive guidelines for the ICC judicial function will develop during the first years of operation.
150 During the Second ASP (8-12 September 2003), the OTP made public a ‘policy paper’ containing central strategies and policies on different topics. Open to discussion and suggestions, the aim is to set the institutional framework (Regulations) to guide the future decision-making process and practice of the OTP, as the "first permanent international prosecution service". Paper on Some Policy Issues Before the Office of the Prosecutor (Policy Paper 2003), ICC-OTP (2003). ICC [Online: http://www.icc-cpi.int/otp/policy.php].
151 Policy Paper (2003), ICC-OTP, p. 1.
152 Ibidem, p. 2.
153 Marston Danner has identified how discretional powers compel "prosecutors to make decisions that cumulatively affect the criminal justice system as a whole". Allison Marston Danner, "Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court", American Journal of International Law, Volume 97, No. 3 (July 2003), 510-552, p. 518. On Prosecutorial Discretion of the OTP, see further pp. 518-522.
154 Ibidem, p. 510.
155 To assess the efforts of States to comply with their primary duties of investigation and prosecution, the Policy Paper establishes that the OTP "will take into consideration the need to respect the diversity of legal systems, traditions and cultures". Policy Paper (2003), ICC-OTP, p. 5.
156 Kriangsak Kittichaisaree, International Criminal Law (U.S.A.: Oxford University Press, 2001), p. 326. Note: Emphasis added.
157 UN-SC Resolution S/RES/1329 (5 December 2000), paragraph 7. UN [Online: http://www.un.org/Docs/scres/2000/sc2000.htm].
158 Nicholas N. Kittrie, Professor at the American University, Washington College of Law. Seminar delivered during the Salzburg Law School on International Criminal Law (August 15 2002, Salzburg, Austria). Personal Records.
159 Article 33 (1) of the ICC Statute stipulates: "The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility".
160 The 2004 financial budget for the ICC was programmed on assumptions about the possible activities of the Court, expectations that have not been met (The estimates predicted that by 2004 the OTP would be handling one investigation according to Article 53 of the Statute, three case investigations and two preliminary examinations according to Article 15 of the Statute) (paragraph 34). Consequently, worries on the expenditure have obliged the Committee on Budget and Finance to propose modifications for next year’s finances —without compromising efficient and cost-effective management— in three main areas: the Judiciary (Presidency and Chambers), the OTP and the Registrar. Several recommendations were made involving restrictions on the recruitment of Staff according to the developing necessities of the Court and reductions of the budget as follows: a) institution of staffing practices to ensure all staff keep to their regular working hours avoiding overtime (paragraph 27); b) allocation for salaries of judges to be reduced by 20%, as well as reduction of allocations for additional legal support (paragraph 33); c) cutting down posts that are more numerous than what is likely to be required (paragraph 35); d) the creation of a third investigating team of the OTP programmed to commence in 2004 to be referred to 2005 (paragraph 37); e) for the Registry, reduction of posts, and re-justify the necessities for the 2005 budget with information on the actual work load (paragraph 40); f) the reduction of travel expenses by 20% for the Immediate Office of the Registrar (paragraph 41); g) ten General Service Posts involving finance, human resources, information technology and public information areas were suggested not to be approved (paragraph 42); h) the subsidy for the cafeteria for the Court’s staff not to be approved (paragraph 43); i) reduction of the Court’s communications products (pamphlets, posters, audio and visual materials) and reduction by 50% of the budget to promote abroad the ICC (paragraph 47); j) reduction of the budget by 30% for direct expenses of witnesses (paragraph 50); and k) 50% reduction of the financial assistance for the Victims and Witnesses Unit at this stage (paragraph 51). Financial concerns were also raised, since only 39 States have made their full contributions, 11 have done so only partially and 39 have completely failed to do so (paragraph 58). During the Second ASP (September 8-12 2003), the Working Group on Budget and Finance addressed these proposals during its sessions. In general terms, participating States opposed to the modifications of the budget proposed by the Committee, especially regarding the salaries of the Judges. See Report of the Committee on Budget and Finance, ASP (8 August 2003), ICC-ASP/2/7. ICC [Online: http://www.un.org/law/icc/asp/aspfra.htm].
161 Noticeably, the Policy Paper (2003), ICC-OTP, did not include any parameters to establish the ideological or conceptual content of what is to be understood for the interests of justice.
162 Prosecutor v. Duško Tadi?, aka "Dule", Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), B. Sovereignty of States, paragraph 94 (iii). ICTY [Online: http://www.un.org/icty/ind-e.htm]. See also paragraphs 90-93.
163 Prosecutor v. Zoran Kupreskic et al. (IT-95-16), Trial Chamber Judgment (14 January 2000), paragraph 852. ICTY [Online: http://www.un.org/icty/judgement.htm].
164 According to the Regulations adopted ad interim by the OTP, "the concept of gravity should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission". Policy Paper (2003), ICC-OTP, p. 6.
165 Preamble, paragraphs 4 and 9, ICC Statute.
166 In the context of the 2003 Report on the Implementation of the Millennium Declaration, Secretary-General Kofi Annan classifies the ICC as a "significant step towards the elimination of impunity for the gravest human rights violations". Implementation of the United Nations Millennium Declaration, Report of the Secretary-General, A/58/323 (2 September 2003), paragraph 77, p. 14. UN [Online: http://www.un.org/millenniumgoals/index.shtml]. Note: Emphasis added.
167 Regarding the rule of law and the role of international law in transitional periods, see Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000), pp. 11-26 and 51.
168 Ibidem, p. 20.
169 Undoubtedly, the "cases adjudicated by the ICC are infused with political implications and require sensitive decision making by those members of the Court —including the Prosecutor— who are vested with the discretion to exercise its powers". Marston Danner (July 2003), p. 510.
170 See Frédéric Mégret, "Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and the Looming Revolution of International Law", European Journal of International Law, Volume 12, No. 2 (April 2001), 247-268, p. 253.
171 Article 7 (2) (a) on Crimes Against Humanity, ICC Statute. Note: Emphasis added.
172 Article 8 (1), ICC Statute.
173 Mégret (April 2001), p. 253.
174 Ibidem, p. 254.
175 On March 20 1993, the Republic of Bosnia Herzegovina filed an application against the Federal Republic of Yugoslavia, arguing violations to the Genocide Convention, the UDHR, UN Charter and the principle of non-intervention, demanding adequate compensation. The ICJ stated that, "as regards the question whether Yugoslavia took part —directly or indirectly in the conflict at issue—, the Court would merely note that the Parties have radically differing viewpoints in this respect and that it cannot, at this stage in the proceedings, settle this question, which clearly belongs to the merits". Regarding the type of State responsibility, "the Court would observe that the reference in Article IX to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article III’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or public officials". Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Judgment on Preliminary Objections (11 July 1996), International Court of Justice. See paragraphs 31 and 32. ICJ [Online: http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyframe.htm].
176 Mégret (April 2001), p. 254.
177 Teitel (2000), p. 33.
178 Bass claims that, in 1918, it was the "force of public opinion [that] made it all but inevitable that the Allies would decide to punish German war criminals" (without much success). However, outraged public opinion "is untamed and violent, and that a democratic government that takes its cues directly from that public mood is likely to want revenge, not trials. Democratic mass outrage may make it impossible for a government to ignore the question of war criminals, but it is no guarantee of legalism". See Bass (2000), pp. 161 and 279. Note: Emphasis added.
179 During the preliminary negotiations leading to the Rome Conference (1995), one of the concerns expressed by Indonesia, referred to the appointment of Judges and the Prosecutor, in the sense that it "was essential to guarantee impartiality, independence and due process without the judges and the prosecutor being influenced by political or social pressures". Thomas Samodra Sriwidjaja, Representative of Indonesia, UN-GA Press Release GA/L/2880 (2 November 1995), Debate on Proposed International Criminal Court Continues in Sixth Committee. UN [Online: http://www0.un.org/apps/press/searchAr.asp]. Note: Emphasis added.
180 Bass (2000), p. 280. Note: Emphasis added.
181 Idem.
182 Prosecutor v. Slobodan Milosevic, Decision (11 December 2003) (Case No. IT-02-54), David Tolbert, Deputy Registrar. ICTY [Online: http://www.un.org/icty/latest/index.htm].
183 Idem.
184 Idem.
185 The decision was prompted due to the fact that Mr. Milosevic, a candidate in Serbian Parliamentary elections to be held in December 28 2003, made a speech that was made public by the media. The Socialist Party of Serbia won 22 seats of the 250 seat National Assembly of the Republic of Serbia. Family, Legal Counsel and Diplomatic and Consular representatives were excluded from this prohibition, although the Detention Unit has discretional powers of supervision. The terms of the Decision (30 days) were extended in January 8 and February 6 2004. Idem.
186 See Keith Evans, "The Publicity is the Problem", New Law Journal, Volume 145, No. 6703 (7 July 1995), p. 992.
187 See Damian Paul Carney, "The Accused, the Jury and the Media", New Law Journal, Volume 145, No. 6678 (13 January 1995), p. 12.
188 Bass (2000), p. 34.
189 Prosecutor v. Radoslav Brdjanin, Momir Talic, Decision on Interlocutory Appeal (11 December 2002), Appeals Chamber (Case No. IT-99-36-AR73.9), paragraphs 3-10. ICTY [Online: http://www.un.org/icty/cases/indictindex-e.htm].
190 Ibidem, paragraph 36.
191 Ibidem, paragraph 42.
192 Ibidem, paragraph 52.
193 Ibidem, paragraph 53.
194 External pressures have been acknowledged to the extent that some authors have seen advantages if lay judges for the ICC were to be appointed, as it "might counter-balance the pressure on professional judges to convict". See Lynne Miriam Baum, "Pursuing Justice in a Climate of Moral Outrage: An Evaluation of the Rights of the Accused in the Rome Statute of the International Criminal Court", Wisconsin International Law Journal, Volume 19 (Spring 2001), 197-229, p. 228.
195 See Articles 36 (3) (a), 40 (1), 42 (1) and 44 (2), ICC Statute.
196 Mégret (April 2001), p. 268.
197 Eric Barendt, "Judging the Media: Impartiality and Broadcasting", in Jean Seaton (ed.), Politics & the Media: Harlots and Prerogatives at the Turn of the Millennium (Oxford: Blackwell Publishers, 1998), 108-116, p. 108.
198 Thomas E. Patterson, "Political Roles of the Journalist", in Doris Graber, Denis McQuail and Pippa Norris (eds.), The Politics of News The News of Politics (U.S.A.: CQ Press, 1998), 17-32, p. 17.
199 By a confidential Decision of the Trial Chamber, the testimony of General Clark in the Milosevic trial was to be treated as confidential information to protect national interests of the U.S.A. Access of the media to the sessions was restricted and the American Government was allowed to review and redact the transcripts before their public release. ICTY Press Release JL/P.I.S/802-e (19 November 2003), General Wesley Clark to Testify in the Milosevic Trial on 15 and 16 December 2003. ICTY [Online: http://www.un.org/icty/latest/index.htm].
200 Under Article 18 (1) the Prosecutor may notify the States involved on a confidential basis when an investigation has been initiated. Article 54 (3) (e) allows the Prosecutor to agree not to disclose information provided on the basis of confidentiality at any stage of the proceedings. On the protection of witnesses, Article 68 (5) allows the Prosecutor to withhold certain information without, of course, jeopardising the rights of the accused and a fair and impartial trial. Regarding evidence, Article 69 (5) imposes on the Court the obligation to respect and observe privileges on confidentiality. Article 72 contains the rules for the cases in which the information involves the protection of National Security Information.
201 Even if fair trial guarantees can be ensured despite the involvement of the media, the dangers of national or international publicity are often produced in detriment of the accused. See Walter Greenwood, "Trial by Media?", New Law Journal, Volume 152, No. 7048 (20 September 2002), 1369.
202 There are recent examples at the domestic level of the coverage of the media of criminal investigations and processes involving accusations of international crimes. The investigation by the British Ministry of Defence (MoD) of Tim Collins, member of the British Army who participated in the military operation ‘Iraqi Freedom’ (2003) in the Persian Gulf, received extensive press reporting. The soldier was accused of irregular behaviour consisting of mistreatment of POWs. Eventually, he was cleared from any responsibility by the MoD (the conclusion was that no criminal proceedings were even necessary). At the international level, after Mr. Milosevic was arrested in March 2001 and transferred to the ICTY, The Sunday Times Magazine (September 1 2002) published an article (cover story) entitled The Butcher Behind Bars. It is an account by the warden of the District prison in Belgrade where Mr. Milosevic remained from the moment of his arrest to the moment he was transferred to The Hague, attributing some statements to the Defendant. In this particular case the decision of the criminal proceedings before the ICTY is still pending. See Ian Cobain, David Lister and Gabriel Rozenberg, "Soldier Inspired a President but Made Enemies" (May 22 2003) and PA and AP, "Colonel Tim Collins Cleared of Mistreating PoWs" (September 1 2003) (British Newspaper The Times). See "Officer cleared of Iraqi war crimes" (British BBC News UK Edition, September 1 2003). See also Dragisa Blanusa, "The Butcher Behind Bars, The Inside Story" (British Newspaper The Sunday Times, September 1 2002).
203 Prosecutor v. Radoslav Brdjanin, Momir Talic, paragraph 37.
204 Article 43, ICC Statute and Rule 13 (1), RPE.
205 See Article 18 (4), ICC Statute.
206 Note: Emphasis added.
207 Article 18 (5), ICC Statute, states: "When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay".
208 Article 19 (11), ICC Statute.
209 Mégret gives a detailed account and analysis of some of the most significant arguments opposing the ICC. See Mégret (April 2001), 247-268.
210 Ibidem, p. 266.
211 Bartram S. Brown, "Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals", 23 The Yale Journal of International Law (Summer 1998), 383-436, p. 388.
212 Roger S. Clark, Professor Rutgers School of Law-Camden. Clark represented the Government of Samoa at the Preparatory Committee for the 1998 Rome Diplomatic Conference, during the Rome Conference and the Preparatory Commission (PrepCom) 1998-2002. Seminar delivered during the Salzburg Law School on International Criminal Law (August 5 2002, Salzburg, Austria). Personal Interview and Records.
213 Those factions who predicted the risks or opposed to some of the final proposals, acquiesced in the end for the sake of achieving the necessary signatures after the voting session, in order to adopt a document that was seen as a whole. ICC-ASP Press Release L/3047, President of ASP Zeid Ra'ad Zeid Al-Hussein (Jordan) International Criminal Court ‘Now a Functioning Judicial Institution’, Assembly of States Parties Told, as It Begins One Week Session (8 September 2003). UN-GA [Online: http://www0.un.org/apps/press/search.asp].
214 Idem.
215 Note: Emphasis added.
216 Article 19 (11): "That information [submitted by States to the Prosecutor] shall, at the request of the State concerned, be confidential". Note: Emphasis added.
217 Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (May 5 2003), CCPR/C/74/CRP.4/Rev.3 (General Comment), HRC, paragraph 1bis. OHCHR [Online: http://www.unhchr.ch/tbs/doc.nsf].
218 "While sovereign States find it increasingly advantageous to bring their domestic and foreign policies in line with certain basic values held by the international community at large, States still act primarily in their own self-interests, even where this course may be at odds with the rest of the international community". Lyal S. Sunga, The Emerging System of International Criminal Law, Developments in Codification and Implementation (The Hague: Kluwer Law International, 1997), p. 340.
219 Sunga has correctly explained how, despite the tendency to preserve total sovereignty, "the blossoming of international cooperation in the United Nations era has brought about transformation from the lattice structure of the system of bilateral State relations, to a more multilateral system in which the international community acts cooperatively and collectively to reach common goals". Idem.
220 Economic sanctions on Cuba, contributions to development assistance in Latin America, the Middle East or Africa, or technology transference and strategic support in the case of Colombia are just some examples to illustrate the complex dynamics of international relations.
221 In his State of the Union address (1994), Bill Clinton, former President of the U.S.A., declared: "Democracies don’t attack each other. They make better trading partners and partners in diplomacy". See William J. Clinton, Address Before a Joint Session of the Congress on the State of the Union (January 25 1994), p. 132. Clinton Presidential Materials Project, Public Papers of the Presidents of the United States, The National Archives, Office of the Federal Register, William J. Clinton (Volume I, 1994) [Online: http://www.clinton.archives.gov/welcome/welcome.html].
222 The purpose of the McDonald’s metaphor used by Friedman is to demonstrate how "today’s version of globalization significantly raises the costs of countries using war as a means to pursue honor, react to fears or advance their interests". Thomas L. Friedman, The Lexus and the Olive Tree, Understanding Globalization (U.S.A.: Anchor Books, 2000), pp. 248 and 250.
223 Ibidem, p. 253.
224 That liberal States comply better with international law is an argument that has been questioned. For Alvarez, there is no definite evidence to prove that liberal States are intrinsically ‘better law-abiding’ members of the international community. Contrariwise, he considers there are arguments to be sceptical. José E. Alvarez, "Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory", European Journal of International Law, Volume 12, No. 2 (April 2001), 183-246.
225 During the works of the 1996 PrepCom, concerns were raised about the effect that decisions on the ‘availability’ or ‘ineffectiveness’ of the domestic systems may have, placing the Court "in the position of passing judgement on the penal system of a State. That would impinge on the sovereignty of national legal systems and might be embarrassing to that State to the extent that it might impede its eventual cooperation with the court". See Preparatory Committee on the Establishment of an International Criminal Court, Summary of the Proceedings of the Preparatory Committee during the period 25 March-12 April 1996, paragraph 115. United Nations A/AC.249/1 (7 May 1996). CICC [Online: http://www.iccnow.org/html/u.n..html].
226 Friedman (2000), pp. 257-264.
227 The military operation of the multinational Allied force during the Iraq conflict (2003) provides a good example of how sensitive decisions on the use of force can be taken outside the institutional framework of the United Nations, and how this institution is apparently losing its grip over the chosen mechanisms with which the member States of the community of nations deal with international conflicts.
228 War Crimes when committed "as part of a plan or policy" (Article 8 (1) ICC Statute) and Aggression (probably to be defined in 2009 at the earliest by a Review Conference, according to the rules of Article 123 of the Statute). Regarding war crimes, the element of State policy is not a requirement for the crime to be committed, but just an indicative of the special attention that the crimes committed in such circumstances will be given by the ICC. Furthermore, participation in the crime as an official should be interpreted as an aggravating element of the crime once individual criminal responsibility has been proven, due to the betrayal of the trust that is naturally conferred to public servants by the members of the social group and the breach of their public duties. In this sense, regarding cases where the offender has participated in a crime in his individual capacity and as a superior authority with respect to the offence, the ICTY has concluded: "The question is whether the crime attracts only one sentence in respect of a superior who participates in the offence charged. Ideally a superior who participates in the actual commission of a crime should be found guilty both as a superior and also as a direct participant as any of the other participants who did so in obedience to his orders. However, to avoid the imposition of double sentencing for the same conduct, it should be sufficient to regard his conduct as an aggravating circumstance attracting enhanced punishment". The ICC must remain neutral to the conflict and abstain from involving the State when determining the criminal responsibility of the individual. See Prosecutor v. Zejnil Delalic et al., Judgment (16 November 1998) (Case No. IT-96-21), Trial Chamber, paragraph 1223. ICTY [Online: http://www.un.org/icty/judgement.htm]. On the legislative decision-making process, see Donat-Cattin, "Decision Making in the International Criminal Court: Functions of the Assembly of States Parties and Independence of the Court’s Judicial Organs", pp. 7 and 8 [To be published in Lattanzi & W. Schabas, Essays on the Rome Statute of the International Criminal Court (Ripa di Fagnano Alto, Il Sirente, Volume II, 2002)] [Copy from the Author] (August 7 2002, Salzburg, Austria).
229 For Kittichasaree, the "determination of aggression by a State is a sine qua non condition for the attribution of individual criminal responsibility for the crime of aggression". For the ILC, "individual responsibility for such a crime [aggression] is intrinsically and inextricably linked to the commission of aggression by a State. The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. At the same time, a State is an abstract entity which is incapable of acting on its own. A State can commit aggression only with the active participation of the individuals who have the necessary authority or power to plan, prepare, initiate or wage aggression". For the ICC, separating the adjudication of individual criminal responsibility from the responsibility of the State when aggression has been committed will be the ultimate challenge to preserve the ethos and viability of the Institution. See Kriangsak Kittichaisaree, International Criminal Law (U.S.A.: Oxford University Press, 2001), p. 207. See also Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, General Assembly Official Records: Fifty-first Session, Supplement No. 10 (A/51/10) (Chapter II, Part II), Article 16 (Crime of Aggression), Commentary (4). ILC [Online: http://www.un.org/law/ilc/reports/1996/96repfra.htm].
230 Jeffrey L. Bleich, "Complementarity", in M. Cherif Bassiouni (ed.), The International Criminal Court: Observations and Issues before the 1997-98 Preparatory Committee; and Administrative and Financial Implications (Association Internationale de Droit Pénal) (13 Nouvelles Études Pénales, érès, 1997), 231-243, p. 242.
231 See Immi Tallgren, "Completing the ‘International Criminal Order’, The Rhetoric of International Repression and the Notion of Complementarity in the Draft Statute for an International Criminal Court", Nordic Journal of International Law, Volume 67 (Kluwer Law International, 1998), 107-137, p. 132.
232 Gary Jonathan Bass, Stay the Hand of Vengeance, The Politics of War Crimes Tribunals (U.S.A.: Princeton University Press, 2000), p. 29.
233 Tallgren (1998), p. 132.
234 Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 1993), p. 433.
235 Ibidem, p. 434.
236 The Permanent Court sustained that "it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application". Chorzów Factory case (Germany v. Poland) (Jurisdiction), PCIJ, in Arnold D. McNair and H. Lauterpacht (eds.), Annual Digest of Public International Law Cases, Years 1927 and 1928 (Volume 4) (London: Longmans, Green and Co., 1931), p. 502.
237 R. I. Mawby and S. Walklate, Critical Victimology, International Perspectives (London: Sage Publications Ltd., 1994), p. 8.
238 Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations (The Netherlands: Martinus Nijhoff Publishers, 1992), p. 167.
239 Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (May 5 2003), paragraph 17.
240 The failure of the State to comply with fair trial guarantees accorded by international standards is the threshold that legitimises the suspect of a crime to file such a claim. The independence and impartiality of the proceedings are guarantees that are expected to be enforced not only to protect the offender but also the victim/s and the social group. Articles 10 UDHR, 14 ICCPR, 6 ECHR, and 8 ACHR.
241 Cassese has sustained that "the question of the length of international trials is further complicated by language problems". Since international trials are conducted in more than one language, the factor of translation "makes for a state of affairs that is hardly consistent with the right to a ‘fair and expeditious trial’ and the presumption of innocence accruing to any defendant". Antonio Cassese, International Criminal Law (Great Britain: Oxford University Press, 2003), pp. 442 and 443.
242 Ibidem, p. 442.
243 For Sunga, the "enforcement of international individual responsibility is likely to be more effective if it were to be carried out by domestic courts, rather than by an international tribunal. Domestic criminal law is almost always more developed and more sophisticated than the rudimentary norms of individual criminal responsibility in international law". Even if the ICC Statute represents a significant theoretical advancement, the current state of international criminal law as a permanent system has still to develop through practice and jurisprudence. Sunga (1992), p. 115.
244 Prosecutor v. Duško Tadi?, aka "Dule", Decision on the Defence Motion on Jurisdiction (10 August 1995), Trial Chamber Decision (Case No. IT-94-1-T, ICTY, paragraph 39). André Klip and Göran Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals (Volume 1: The International Criminal Tribunal for the Former Yugoslavia 1993-1998) (Antwerp: Intersentia Hart Publishing, 1999), p. 22.
245 The European Court of Human Rights has sustained that "one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question". The same Court concluded that the "power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of «tribunal»". Case of Brumarescu v. Romania, Judgment (28 October 1999) (Application No. 28342/95), Report of Judgments and Decisions 1999-VII, paragraph 61; and Case of Morris v. The United Kingdom, Judgment (26 February 2002) (Application No. 38784/97), paragraph 73, respectively. ECourtHR [Online: http://www.echr.coe.int/Eng/Judgments.htm].
246 A separate right to compensation for the individual accused before the ICC derives from miscarriages of justice before the ICC itself, involving unlawful arrests or detention, or the convicting sentence being reversed due to subsequent discovered ‘facts’. Even if an acquittal has followed a manifest miscarriage of justice, the Court may grant the individual compensation according to law, although in this last situation, the power is discretionary. See Article 85 (1), (2) and (3), ICC Statute; and Rules 173, 174 and 175, RPE.
247 The current approach of international criminal law confers to the victim of crime a proactive role in the proceedings, according to which they can participate when appropriate when their personal interests are affected. The Rules of Procedure and Evidence (ICC) have defined the concept of victim as "natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court". See Article 68 (3), ICC Statute; and Rules 85 (a) and 89-93, RPE.
248 Denial of access to competent authorities and adequate remedy substantiate actions afforded to the victim/s. See Articles 2 (3) (a), (b) and (c) ICCPR, 13 ECHR, and 1, 2, 8 (1) and 25 (1) ACHR.
249 Derived from the individual criminal responsibility of the offender determined by a convicting sentence, the ICC Statute includes the mechanisms for the reparation in respect of victims. Article 75 (1) and (2) includes restitution, compensation and rehabilitation, whereas Article 79 provides for the establishment of a Trust Fund for such purposes. See also Rules 94-98, RPE ICC.
250 On the reparation to victims, Article 75 (6), ICC Statute, stipulates: "Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law".
251 Article 17 (1) (d) and 53 (1) (c) and (2) (c), ICC Statue.
252 Situations like the death of the accused during the proceedings would interrupt the investigation or prosecution in regards that particular offender. The case is not unheard of. On June 29 1998, Slavko Dokmanovic, defendant before the ICTY, committed suicide whilst in the Detention Unit of the Court, causing great embarrassment to the Administrative structure of the tribunal. His trial was commenced on January 19 1998, and his death occurred just a few days after the closing statements took place on June 26 1998, session during which Judge Cassese promised to render judgement within the period of two weeks. By Order of July 15 1998, the Trial Chamber considered that "in the case of the death of an accused, the proceedings are terminated". Regarding external circumstances, according to the Rules of Procedure and Evidence, the ICC may also adjourn a trial if it is considered that the accused is unfit to stand before the Court. See Prosecutor v. Mile Mrksic et al., Order Terminating Proceedings Against Slavko Dokmanovic (15 July 1998), Trial Chamber (Orders and Transcripts) (Case No. IT-95-13). ICTY [Online: http://www.un.org/icty/ind-e.htm]. Also, Rules 113 and 135 (4), RPE ICC.
253 In order to initiate an investigation or proceed with a prosecution, the Prosecutor must be satisfied that there is ‘reasonable basis to believe’ that a crime has been or is being committed, there are ‘sufficient legal or factual basis to seek a warrant’, requisites under Article 17 are satisfied and that the investigation would serve the interests of justice. See Article 53 (1) (a), (b) and (c), and (2) (a), (b) and (c), ICC Statute.
254 See Sunga (1992), p. 129.
255 The HRC has confirmed that "the ‘rules concerning the basic rights of the human person’ are erga omnes obligations". Therefore, States have legitimate interests on how other States discharge their international obligations. Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, paragraph 1bis.
256 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase), Judgement (18 July 1966), International Court of Justice, Reports of Judgments, Advisory Opinions and Orders 1966, paragraph 88.
257 The criterion established by the ICJ in the South West Africa cases by which the recognition of actio popularis at the international level was denied, was reversed and superseded by the latter decision taken in the Barcelona Traction case, and seen by Kittichaisaree as an ‘apology’ by the ICJ for the previous statement. On the validity of actio popularis, see Kittichaisaree (2001), pp. 10-13. On obligations erga omnes and actio popularis, see Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (Great Britain: Oxford University Press, 2000), pp. 210-214. See also Case Concerning The Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase), Judgement (5 February 1970), ICJ, Reports of Judgments, Advisory Opinions and Orders 1970, paragraphs 33 and 34.
258 As legal consequences created by international wrongful acts, the State is obliged to cease the act and guarantee its non-repetition, in addition to make full reparation, restitution and compensate for the inflicted damage. Draft Articles on Responsibility of States for Internationally Wrongful Acts, Adopted by the International Law Commission at its Fifty-third Session (November 2001), Articles 30, 31, 35 and 36. ILC [Online: http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm].
259 The legal framework created by the UN system eroded the strict doctrine of State sovereignty according to which any foreign criticism on the performance of the State was useless and even illegitimate. Under the new scheme, Government’s actions and policies are legitimately scrutinized by other States and international organs. See Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence (United Kingdom: Cambridge University Press, 2002), pp.17-23.
260 State responsibility must be seen as an integral system, since the Executive branch of Government that usually represents the State before the international community "cannot point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility". Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, paragraph 3.
261 The Nuremberg Judgement emphasised the principle of personal criminal liability. International Military Tribunal (Nuremberg), Judgment and Sentences (October 1 1946), Judgment. Volume 41, No. 1, American Journal of International Law (January 1947), 172-333, p. 221.
262 In the previous provisional Draft on State Responsibility, the ILC addressed the topic of ‘international crimes of State’. Former Article 19 included three different concepts: ‘internationally wrongful act’, ‘international crimes’ and ‘international delicts’. The recent modifications adopted by the ILC refer to the responsibility of the State entailed by an "internationally wrongful act" or "a serious breach by a State of an obligation arising under a peremptory norm of general international law". See Draft Articles on State Responsibility (1996), Articles 1, 19 and 51-53, Report of the International Law Commission on the work of its forty-eighth session, General Assembly Official Records: Fifty-first Session, Supplement No. 10 (A/51/10) [Chapter III, State Responsibility]; and Draft Articles on Responsibility of States for Internationally Wrongful Acts (November 2001), Articles 1 and 40 (1), Report of the International Law Commission on the work of its fifty-third session, General Assembly Official Records: Fifty-sixth Session, Supplement No. 10 (A/56/10) [chp.IV.E.1]. ILC [Online: http://www.un.org/law/ilc/reporfra.htm]. For further comment see Louis Henkin, Richard Crawford Pugh, Oscar Schachter and Hans Smit, International Law, Cases and Materials (American Casebook Series, West Publishing Co., 1980), Sections 5 and 6, pp. 566-570.
263 See D. J. Harris, Cases and Materials on International Law (London: Sweet & Maxwell, 1998), pp. 487-491.
264 Article 25 (1), ICC Statute.
265 Although the ECHR and the ACHR also accept complaints presented by States against other parties to the conventions.
266 Article 36, ICJ Statute.
267 Kittichaisaree (2001), p. 11.
268 Actions may include reporting and inquiry procedures, recommendations, inter-State and individual complaints. Amongst such type of organs are the UN Commission on Human Rights, ICCPR Human Rights Committee, ECOSOC, UNESCO and ILO. On the competence and jurisdiction of international institutions and tribunals, see Dinah Shelton, Remedies in International Human Rights Law (Great Britain: Oxford University Press, 2000), pp. 137-147.
269 According to Articles 41 and 42, UN Charter, complete or partial interruption of economic relations, communications and/or the severance of diplomatic relations, and the use of force. See further Jayawickrama (2002), p. 138.
270 The intervention of the international community when human rights violations have been committed by the State is secured by a multitude of instances available, although implementation mechanisms remain "the weakest link in the international human rights regime". Ibidem, p. 130.
271 In the national ambit (Colombia), decisions delivered by competent international human rights institutions have been acknowledged and incorporated to the domestic criminal proceedings, as a requisite (cautelas y protecciones formales) to revise some judicial decisions (cases where violations of fair trial guarantees and breaches of international humanitarian law have been committed by the State). Sentencia C-004/03, Referencia: expediente D-4041, Demanda de inconstitucionalidad contra el artículo 220 numeral 3° parcial de la Ley 600 de 2000 o Código de Procedimiento Penal, Actor: Santiago Acevedo Martelo (20 Enero 2003), paragraph 35. Sala Plena de la Corte Constitucional de la República de Colombia (Constitutional Court of Colombia).
272 Article 18 (2), ICC Statute.
273 Challenges to the admissibility of the Court can be filed by an accused or the State which has jurisdiction over a case. Articles 18 (4) and 19 (2) (a) and (b), ICC Statute.
274 Articles 18 (3) and (5), 19 (11), and 53 (1) (b) and (c) and (4), ICC Statute. The ‘interests of justice’ argument seems applicable for these situations, without the administration of justice being affected, since proceedings before the ICC could be reactivated.
275 The same in situations in which the investigation is suspended until a determination on admissibility challenges is delivered, but the Pre-Trial Chamber authorises the Prosecutor to preserve and examine evidence, take testimony or prevent the absconding of persons. Articles 18 (6), and 19 (7) and (8), ICC Statute.
276 Article 17 (1) (d), ICC Statute.
277 Article 53 (1) (c) and 2 (c), ICC Statute.
278 Article 82 (3), ICC Statute, allows the suspension of the proceedings in case of appeal against the decision on jurisdiction or admissibility: "An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence". Rule 156 (5), RPE ICC, provides that "when filing the appeal, the party appealing may request that the appeal have suspensive effect in accordance with article 82, paragraph 3".
279 Article 53 (1), ICC Statute, and Rule 105 (1) and (3), RPE.
280 Article 53 (4), ICC Statute. The same criterion applies for the case of preliminary examinations [Article 15 (6)].
281 Apart from Article 53 (4), Article 95, ICC Statute, stipulates: "Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested state may postpone the execution of a request under this Part [International Cooperation and Judicial Assistance] pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19".
282 Shelton (2000), p. 37.
283 Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (May 5 2003), paragraph 15. Note: Emphasis added.
284 In order to establish a coherent framework on the application of remedies for human rights violations, Shelton recourses to the theory and practice of domestic and international tribunals, in addition to the implied powers of HRI. Shelton (2000), p. 138.
285 NGOs have played an important role in the enforcement of human rights provisions and the development of international criminal law. On the performance of NGOs, authors such as Jayawickrama consider that "non-governmental organizations have made, and continue to make, a very significant contribution to the formulation, adoption and entry into force of international human rights instruments, and thereafter to their implementation. Indeed, without the active intervention of non-governmental organizations, the development of international human rights law would still be at a very rudimentary stage". Jayawickrama (2002), p. 152. Note: Emphasis added. Regarding the impact of NGOs during the negotiation, adoption and establishment of the ICC, see William R. Pace and Mark Thieroff, "Participation of Non-Governmental Organizations", in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 391-398.
286 Notably, even in the exclusive areas of competence of the ICC (criminal law), the ‘lack of enforcement agencies’ is considered one of the most serious challenges the Court will be confronted with, so, as with every other international court, it "must rely heavily on the co-operation of States". Cassese (2003), p. 442.
287 For a detailed account of the rules and mechanisms provided by the United Nations system, the jurisprudence and practice of regional human rights regimes and other ad hoc institutions, see Shelton (2000).
288 Although of a more declarative character, seen as a ‘common understanding’ and without including implementing provisions, the UDHR set the bases and commitments on international human rights protection and promotion. Article 8 provides: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law".
289 The ICCPR contains the rules of a reporting system and the procedure for third State claims. Under the Optional Protocol to the ICCPR, it is also recognised the competence of the Human Rights Committee to consider communications filed by individuals. In both cases, the jurisdiction of the HRC is conditioned to its previous acceptance by the State. See Articles 40 and 41, ICCPR; and Article 1, Optional Protocol ICCPR (1966).
290 According to Articles 33 and 34, Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (ECHR), any High Contracting Party, person, non-governmental organisation or group of individuals may refer a case or claim to the European Court. Remedies comprise friendly settlement or ‘just satisfaction’ (Articles 38 and 41, ECHR).
291 Article 44 ACHR, guarantees the right of persons and recognised non-governmental entities to "lodge petitions with the Commission [Inter-American Commission on Human Rights] containing denunciations or complaints of violation of this Convention by a State Party". In the case of complaints of one State against another, a declaration recognising the competence of the Commission is needed [Article 45 (1) and (2)]. Regarding the Inter-American Court of Human Rights, only States Parties and the Commission have the right to submit a case (Article 61). A Declaration by a State Party recognising the jurisdiction of the Court is also needed [Article 62 (1)]. Cases may be concluded by means of a friendly settlement, reports, recommendations or a judgement [Articles 48 (1) (f), 50, 51, 63 and 66 ACHR].
292 The case-law of the Human Rights Committee has established several remedial actions, enlisted as follows: public investigation to establish the facts, bringing the perpetrators to justice, compensation, ensuring non-repetition of the violation, amending the law, restitution and provision of medical care and treatment. In addition, the Committee "notes that, where appropriate, reparation can take other forms [apart from monetary compensation] such as public apologies, public memorials (check language consistency of these terms) and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations". For a reference of legal decisions see Shelton (2000), pp. 142-145. See also Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, paragraph 15.
293 It has been noted that the "idea that wrongs should be redressed, that reparation should be made to the injured, is among the most venerable and most central of legal principles". Naomi Roht-Arriaza, "Punishment, Redress, and Pardon: Theoretical and Psychological Approaches", in Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice (U.S.A.: Oxford University Press, 1995), 13-23, p. 17.
294 On compensation, see Articles 9 (5) and 14 (6) ICCPR, 5 (5) ECHR, and 10 ACHR. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, approved by a General Assembly Resolution in 1988, addresses the topic of compensation as follows: "Principle 35 (1). Damage incurred because of acts or omissions by a public official contrary to the rights contained in these principles shall be compensated according to the applicable rules on liability provided by domestic law". UN-GA Resolution A/RES/43/173 (December 9 1988) (Annex).
295 Article 2 (3) of the ICCPR states that State Parties undertake "(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy".
296 Furthermore, national authorities are under pressure to investigate/prosecute individuals for offences against the administration of justice and cases of failure to comply with a request of cooperation made by the ICC. Regarding the State, these matters may be referred to the ASP or even the UN-SC. See Articles 70 (4) and 87 (7), ICC Statute.
297 "Where public officials or State agents are deemed to have committed violations of the Covenant rights... the State Parties concerned may not relieve perpetrators from personal legal responsibility, as has occurred with certain amnesties". Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, paragraph 17.
298 Since the law and its development is "always part of a larger political, moral and social dynamic". Naomi Roht-Arriaza, "Introduction", in Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice (U.S.A.: Oxford University Press, 1995), 3-10, p. 4.
299 Ibidem, p. 5.
300 Idem.
301 Articles 13, 14 and 15, ICC Statute.
302 Insufficient elements or evidence, inadmissibility under article 17, and not in the interests of justice. Article 53 (1), ICC Statute.
303 Insufficient legal or factual basis to issue a warrant of arrest or summons, inadmissibility under Article 17, and not in the interests of justice. Article 53 (2), ICC Statute.
304 Article 15 (6), ICC Statute.
305 This interpretation broadens the perception that only the State/s or the SC that referred a situation to the Prosecutor must be informed of such decision, as contained in Rule 105, RPE ICC. Such notification of course, must be made in a manner that prevents any danger to the safety of those who provided information (Rule 49, RPE ICC).
306 Article 53 (2), ICC Statute, and Rule 106, RPE.
307 Statement by the Prosecutor Related to Crimes Committed in Barlonya Camp in Uganda, ICC-OTP Press Release No. pids.002.2004-EN (23 February 2004). ICC [Online: http://www.icc-cpi.int/php/news/latest.php].
308 Idem.
309 The Office of the Prosecutor of the International Criminal Court opens its first investigation (23 June 2004), ICC-OTP Press Release. ICC [Online: http://www.icc-cpi.int/newspoint/pressreleases.html].
310 "Until recently, a state’s treatment of its own citizens was not considered a proper concern of international law. Only in the wake of widespread revulsion against the crimes committed immediately before and during World War II did nations finally begin to accept limits on their virtually absolute sovereignty regarding the human rights of those residing within their jurisdiction". See Naomi Roht-Arriaza, "Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress", in Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice (U.S.A.: Oxford University Press, 1995), 24-38, p. 24.
311 Draft General Comment on Article 2, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, paragraph 12.
312 Frédéric Mégret, "Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and the Looming Revolution of International Law", European Journal of International Law, Volume 12, No. 2 (April 2001), 247-268, p. 266.
313 The fact that the UN Security Council can defer an investigation or prosecution when acting under Chapter VII provisions, is a mechanism "for maintaining a balance between the dual objectives of peace and justice... designed to address specific situations where the Security Council deems it necessary that its activities should take precedence over the Court’s criminal jurisdiction". Roy S. Lee, "The Rome Conference and Its Contributions to International Law", in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 1-39, p. 36.
314 Mégret (April 2001), p. 268.
