The ICC is not a usurper: but is it inching towards being one?

But, Excellencies, Ladies and Gentlemen: any fear that the ICC is a usurper of national sovereignty proceeds from a clear misunderstanding of the nature of the ICC’s jurisdiction. That fear may indeed be implicated in the reluctance of some States to ratify the Rome Statute, as has been expressed around the world, where ratification has not yet taken hold.

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But, even for the more able States, the ICC remains valuable – not as a usurper of sovereignty – but as a mirror of conscience. Such is the case where political will appears a little shy to address the needs of justice, behind the veil of sovereignty. It is noted in this connection that war crimes do occur in almost every war. And the culprits can come from the rank and file of the most disciplined and professional armed forces in the world, in spite of the best efforts of their commanders acting with unimpeachable good faith.

ICC President Judge Chile Eboe-Osuji, Speech to the United Nations General Assembly

ICC President Judge Chile Eboe-Osuji

International Criminal Court (ICC) President Judge Chile Eboe-Osuji addressed the United Nations (UN) General Assembly on 29 October 2018 with one overarching aim – to assuage the fears of many States and non-States Parties who view the ICC with alarm and skepticism as an organic international judicial institution that aspires to exercise jurisdiction well beyond the narrow contours of what the States Parties had agreed to when signing on to the Rome Statute. Measured, with generous usage of memorable quotes (one of his characteristic trademarks) and a whiff of thou doth protest too much, President Eboe-Osuji’s speech reads like an oblique response to US National Security Advisor John R. Bolton’s criticism of the ICC (see here).

As optimistic as one can be about the potential of the ICC, it is hard not to be a cynic, and even harder not to take with a grain of cynicism President Eboe-Osuji’s representations of the ICC’s abiding caution in exercising its jurisdiction narrowly, conservatively, and judicially. Not that he spoke with forked tongue, but when one looks at the recent Pre-Trial Chamber’s (PTC) Decision concerning the Rohingya, jurisdictional adventurism (mission creep) seems discretely afoot.

Here I am speaking of Section V of the Decision, wherein the Majority in obiter dicta, engaged in a proprio moto exegesis on the ICC’s international legal personality; an issue, which, by the Majority’s own admission, was irrelevant to the jurisdiction question raised by the Office of the Prosecutor’s (OTP) Request.

In a previous post, I observed that the Majority seemed to be telegraphing to other Chambers seized (or expected to be seized) with jurisdictional issues, its views on invoking the ICC’s international legal personality as a hook to derive at an aspired jurisdictional destination. In a split decision, (see my analysis of the Majority’s Decision and the Dissent here and here), after providing unconvincing examples of how the Rome Statute was intended to have effect on non-States Parties,1   Majority’s Decision, paras. 45-47, providing three examples: (a) a number of formulations in the Rome Statute were adopted verbatim from quasi-international treaties reflecting customary international law; (b) conviction of a person before the ICC may be taken into account before any national jurisdiction to avoid double jeopardy, including by a non-State Party, due to the customary character of this principle, or in case of a bilateral agreement between the ICC and a State on the enforcement of sentences; and (c) a non-State Party may decide to cooperate with the ICC, for instance, on matters of arrest and surrender of suspects, participating as observers in the Assembly of States Parties, or in outreach activities. and ultimately relying on the International Court of Justice’s (ICJ) Reparations case (wherein the ICJ proclaimed that the UN had an objective international personality solely on the fact that it had a lot of members), the Majority declared:

[I]t is the view of the Chamber that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court”, possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions. Thus, the existence of the ICC is an objective fact. In other words, it is a legal-judicial-institutional entity which has engaged and cooperated not only with States Parties, but with a large number of States not Party to the Statute as well, whether signatories or not. (para. 48)

Effectively, the Majority insinuates: there are many of us and our cause is righteous, trumping everything else – non-States Parties must objectively recognize us (the ICC’s jurisdiction).

Query whether the Majority – through this interpretive notion of the ICC’s jurisdiction based on the ICC’s international legal personality, is advancing towards universalism as an inevitable jurisdictional consequence irrespective of a State’s refusal to relinquish any of its sovereignty to the ICC. If so, (and reading the tea leaves it arguably seems so), how does this square with President Eboe-Osuji’s claim that the ICC is not a usurper?

The President is right when he claims that the ICC, by its founding core documents, has limited jurisdiction. Nonetheless, the ICC (as other international(ized) criminal tribunals and courts have ventured), arguably is primed to allot itself wide berth in determining the contours of its jurisdiction, which, unsurprisingly (and characteristically), will assuredly be guided in no small measure by politics.

The same can be said about the much-touted complementarity jurisdictional restraint; sound on paper, but not necessarily in practice. As I noted in my post on Bolton’s “new foreign policy” speech where he railed against the ICC declaring that “the United States will use any means necessary to protect [its] citizens and those of [its] allies from unjust prosecution by this illegitimate court,” who is to say that the US government and its prosecutorial authorities have not properly investigated alleged atrocities by US military personnel in Afghanistan or elsewhere, and has not exercised its independent discretionary authority in determining who, if anyone, to charge, and for what crimes?

It is not a matter of taking sides. Objectively viewing the facts as they are, can the ICC with its current 20-year record (such as it is) realistically claim to be a superior prosecutorial and judicial institution to that of the US federal system? Can the ICC legitimately claim – in the absence of all available information to US prosecutorial authorities, some of which is classified and not subject to be revealed due to national security reasons – that it can more thoroughly (and objectively) investigate incidents that occurred under war-like conditions than the US? Hardly. Yet, this is exactly what the ICC Prosecutor Fatou Bensouda claimed by finding that the US’s investigation into alleged incidents in Afghanistan was inadequate, warranting ICC intervention. By rejecting, for instance, US Attorney General Eric Holder’s decision (US Department of Justice issues a statement) not to charge and prosecute at the completion of an investigation, the ICC effectively claimed that the US knowingly and deliberately was shielding US citizens from any prosecution (domestic or otherwise) for having committed crimes against humanity and/or war crimes, irrespective of whether such crimes fall under the ICC’s jurisdiction (for more, see my post here). Is it any wonder then that the ICC would be viewed as a dangerous interloper, a usurper?  Of course, I am not suggesting that the US (as other non-States Parties) get it right all the time, as was the case with the failure to adequately investigate and punish the use of torture during the George W. Bush administration (for an excellent treatment on this see the final chapter in Part III by John Hagan and Anna Hanson in Seeking Accountability for the Unlawful Use of Force edited by Leila Nadya Sadat; reviewed here; see also my post against the confirmation of Gina Haspel to direct the CIA), but even so, this does not mean that the ICC can just step into the breach absent strict application of its statutorily circumscribed jurisdiction as intended by the drafters and acquiesced by the States Parties. There are wide-ranging and unassailable reasons why some states have opted not to relinquish any of their sovereignty rights, however qualified, to the ICC.

My point is that President Eboe-Osuji’s rhetoric only goes so far. The ICC – aside from having achieved relatively modest results during its first 20 years – through its recent decision seems poised to venture beyond the jurisdictional constraints imposed by its founders. And while I may not entirely share the views expressed by some that under all circumstances a state’s enforcement jurisdiction does not extend to the ICC over international crimes committed by foreign nationals absent a UN Security Council’s referral or consent by the accused’s non-State Party (see Steven Kay’s and Joshua Kern’s post here and my position here), the underpinnings of the argument are sound: the ICC’s jurisdiction, which was highly contested in the drafting of the Rome Statute, is purposefully limited, leaving no room for judicial legislative-activism through precedential incrementalism.

Future decisions tackling jurisdictional issues will judge President Eboe-Osuji’s words (and assurances). Until then, claims that the ICC is not a usurper are merely a soundbite.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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