JUST HOW RELEVANT IS THE ICC: A Viable Court of Last Resort or A Politicized Court of Low Expectations? Part I

This multi-part blog post is drawn from Michael G. Karnavas’s Lecture at the Brown University International Organization (BRIO) February 26, 2014.  The complete piece is available on Michael’s website.

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I. INTRODUCTION

Brio_logoOn 26 February 2014, I was invited by the Brown University International Organization (BRIO), at Brown University, Providence, Rhode Island, to present a lecture on the International Criminal Court (ICC) relevant to the ongoing events in Syria.  It is beyond cavil that the ICC is a response to the international community’s concern for mass atrocities around the world—genocide, war crimes, and crimes against humanity—designed “to put an end to impunity” and bring justice to countless victims and survivors.  Merciless leaders have escaped prosecutions by threatening or corrupting their own judiciaries.  The ICC is meant to be a court of last resort for victims seeking justice beyond the reach of obstruction.  In its twelve year history is the ICC meeting expectations?  Is the ICC rendering justice, or has it become a political tool?  Today the ICC faces many complex challenges that call into question the viability of the institution.

With the Syrian conflict in full bloom and no end in sight to the mass atrocities being committed by all sides to the conflict, I settled on the topic of: Just how relevant is the ICC: A viable court of last resort or a politicized court of low expectations?  My aim was not to lecture on international criminal law or on the establishment of the ICC, but to highlight some of the ongoing legal and political challenges relating to jurisdictional issues.  After taking the students through the historical development of international justice—from pre-Nuremberg to Syria—I offerred several vignettes to provoke a discussion and critical thinking.  It would be up to the students to decide on the ICC’s report card.  Personally, I give it an overall average of D+/C-.

II. SETTING THE STAGE—HISTORICAL DEVELOPMENT

 To set the stage on the emergence of international criminal law, I began with an event superbly presented by Professor William Schabas in Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals.[1]  On 18 June 1915, Henry Morgenthau, Sr., the American Ambassador in Constantinople paid a visit to the Grand Vizier of the Ottoman Empire, to deliver a message from the European powers—Britain, France and Russia—related to the massacres of the Armenian population in the Ottoman Empire as was being reported by diplomats and other reliable sources:

In view of the new crimes of Turkey against humanity and civilization, the Allied governments announce publically to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman government and those agents who are implicated in such massacres.[2]

From the message we see that the head of State and other high level officials (and those most responsible) will be held individually responsible. We see “accountability”—a refrain, or, in diplomatic parlance, a demarche, commonly seen in UN resolutions.  Were we to examine the politics of the day among these European powers, undoubtedly we would see that this demarche had political overtones.  The Ottoman Empire by this point in history was commonly referred to as “the sick man of Europe” because it was disintegrating.  Britain, France, Russia and others were not above committing, with impunity, what we would call today crimes against humanity—though not at the scale of the Armenian massacres as reported at that time and which remain unresolved till this day.  Being on top of the power curve ostensibly gave these European countries the self-indulging moral imperative to apply a double standard.  This may strike a chord today; consider the behavior of some of the P5 of the United Nations Security Council (UNSC).  Canons of construction creatively applied in justifying the use of raw power, disguised as military interventions claimed to be permitted by international law.

I was trying to make a couple of points with this event.  First, the message was about holding the leaders and those most responsible accountable for their actions, not the State itself; in other words, individual criminal responsibility.  Second, politics—in the geo-political sense—is part and parcel of international justice.  Indeed, politics and policy are integral ingredients to the international justice agenda of those who set up the international war crimes tribunals.  While independence and impartiality of judges and prosecutors are the hallmarks of any judicial institution established to promote the rule of law, at the international level, other agenda related to policy often obscure the real mission of a criminal court.  Policy concepts such as reconciliation, and contributing to the restoration and maintenance of peace[3] are often stated as the underlying reasons for holding these trials—the raison d’être of these tribunals.  If that was not enough, you have judges and prosecutors who claim that these trials are about establishing the “historical truth”—as if that is possible in a trial.[4]   While some historical facts can be established beyond doubt, trials cannot establish the historical truth and judges are certainly not capable of doing so.

From there I briefly discussed the Treaty of Sèvres, negotiated in Paris in 1919, which envisaged a trial of those “responsible for the massacres committed during the continuance of the state of war on the territory which formed part of the Turkish Empire on 1 August 1914,” though ultimately nothing resulted.[5]  To round out the events leading up to Nuremberg, I touched on 1919 Treaty of Versailles, which called for the prosecution of “William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.”[6]  The establishment of a special tribunal to try Kaiser Wilhelm was envisaged which would be composed of five judges, appointed by the United States of America, Great Britain, France, Italy and Japan, and which would “assur[e] him the guarantees essential to the right of defence.”[7]  This tribunal would be “guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.”[8]  The Treaty of Versailles, in employing victors’ justice language, noted that the German government recognized “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war,” and this right would “apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.”[9]  We would come to see such a provision in the statutes of future international tribunals.[10]

The Tribunal was never established.  Queen Wilhelmina of the Netherlands granted Kaiser Wilhelm political asylum.  On 23 January 1920, the government of the Netherlands refused to extradite him on the grounds that the prosecution would amount to retroactive punishment.[11]  On this point I mused that it would tempting to wonder whether the Dutch government ever regretted not turning over the Kaiser when considering the mass destruction and suffering of the Dutch at the hands of Nazi Germany.  This is the boomerang effect of aiding and abetting impunity, though, assuredly, convicting and punishing Kaiser Wilhelm in an international court of sorts would not have deterred Hitler and all those who supported his policies, goals and the means in achieving them.

As for the establishment of an international criminal court, that idea would also die on the vine.  The League of Nations in 1937 adopted an agreement to establish an international criminal court, but the treaty never entered into force.[12]  It would take nearly 70 years for this noble idea to be realized – at least as an institution, as opposed to a judicial institution paragon.

This brought the discussion to 1945, when during the London Conference, the Allies agreed to form the International Military Tribunal (the Nuremberg Tribunal), with a jurisdiction to try the key leaders of the Nazi regime[13] for: crimes against peace, war crimes, and crimes against humanity, and with a fourth crime of conspiracy for leaders, organizers, instigators and accomplices who participated in the formation or execution of a common plan or conspiracy to commit any of the other three crimes.[14] A similar tribunal would also be established for Japan: the International Military Tribunal for the Far East.[15]

Before getting to the substance of the Nuremberg trials, I thought it would be good to reflect a bit on one proposal circulated at the time that Schabas recounts; an interesting vignette worth pondering.  In April 1945, just before the London Conference, the British government circulated a memorandum, which stated in part:

HMG assume that it is beyond question that Hitler and a number of arch-criminals associated with him (including Mussolini) must, so far as they fall into allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war.  It would be manifestly impossible to punish war criminals of a lower grade by a capital sentence pronounced by a Military court unless the ringleaders are dealt with equal severity. . . .

It being conceded that these leaders must suffer death, the question arises whether they should be tried by some form of a tribunal claiming to exercise judicial functions, or whether the decision taken by the allies should be reached and enforced without the machinery of a trial.  HMG thoroughly appreciates the arguments which have been advanced in favour of some form of preliminary trial.  But HMG are also deeply impressed with the dangers and difficulties of this course, and they wish to put before their principle allies, in a connected form, the arguments which have led them to think that execution without trial is the preferable course.[16]

It is chilling to think back to where we could be today if the British position had won the day; if summary executions were carried out of individuals who, at least in the minds of the British, were guilty beyond any doubt.  Also interesting is some of the language of this memorandum, which seems to suggest that even if trials were to be held, they would in fact be a charade by “claiming to exercise judicial functions.”

The Nuremberg Tribunal, for all intents and purposes, gave birth to the new branch of law, International Criminal Law, which developed out of Customary International Law (State practice and opinio juris: the belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law), International Human Rights Law, International Humanitarian Law and National law. However, the results of the Nuremberg Tribunals and those that followed have been considered victors’ justice.[17]  This term was by no means created for Nuremberg; in fact, the term goes back to ancient times.[18]  However, the phrase was made popular in reference to Nuremberg’s failings.[19] Nuremberg was considered laudable for bringing the top Nazis to trial and paving the road for future international courts such as the ICTY, the International Criminal Tribunal for Rwanda (ICTR), and eventually the ICC.  However, the pursuit of justice at Nuremberg was seen by some to be a sham, as an example of high politics masquerading as law.[20]  To make my point, I invited the students to consider Harlan Fiske Stone’s observation, the Chief Justice of the US Supreme Court at the time when another US Supreme Court Justice, Robert Jackson, was the Chief Prosecutor at Nuremberg:

[Chief Prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg.… I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.[21]

This quote provoked a reaction from the students; hard to dismiss the criticism of Nuremberg when considering the source of the quote.  It also reinforced, in part, one of the themes of this lecture: the inescapable and often deserved perception that international criminal trials are excessively political.  Selective prosecution seems to be the contributing factor for this perception.  Take for instance the ICTR.  There were never any prosecutions of Tutsis because the Rwandan authorities (President Paul Kagame in particular) had made it clear that the ICTR Office of the Prosecutor would be stymied in any of its work in Rwanda, should there be any investigations, let alone prosecutions, against any Tutsis.[22]  While the ICTR trials per se should not be seen as victors’ justice since the ICTR was established under Chapter VII of the UN Charter and was purportedly established to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighboring States between 1 January 1994 and 31 December 1994,”[23] the Prosecution operated as if it were seeking victors’ justice by prosecuting only the vanquished.   Accusations of selective prosecution and disparate treatment were further explored when the discussion turned to the African Union’s perception of the ICC.[24]


[1] William Schabas, Unimaginable Atrocities, Justice, Politics, and Rights at the War Crimes Tribunals, (Oxford 2002).  This is an excellent primer for anyone interesting in international criminal justice. More generally on Morgenthau and the Armenian atrocities, see PETER BALAKIAN, The Burning Tigris: The Armenian Genocide and America’s Response. New York: HarperCollins (2003), pp. 219–221. ISBN 0-06-055870-9.

[2] Id. at 6, 7; Telegram from the Ambassador in Turkey (Morgenthau) to the Secretary of State, Constantinople, U.S. Foreign Relations, 1915 Supplement, 982 (18 June 1915).

[3] See Statute of the International Criminal Tribunal of the Former Yugoslavia, as established by S.C. Res. 808, U.N. Doc. S/RES/808 (22 February 1993) (“ICTY Statute”) (“Convinced that in the particular circumstances in the former Yugoslavia the establishment of an international tribunal … would contribute to the restoration and maintenance of peace”); Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (17 July 1998) (“Rome Statute”), preamble (“Recognizing that such grave crimes threaten the peace, security and well-being of the world”); Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, Phnom Penh (6 June 2003) preamble.

[4] See Address of Antonio Cassese, President of the International Criminal Tribunal for the Former Yugoslavia, to the General Assembly of the United Nations (4 November 1997) available at http://www.icty.org/sid/7452; See also ICTY, Establishing the Facts, ICTY.org, (last visited 17 March 2014). http://www.icty.org/sid/324#establishing. “The Tribunal’s judgements have contributed to creating a historical record, combatting denial and preventing attempts at revisionism and provided the basis for future transitional justice initiatives in the region.” See also Michael G. Karnavas, Gathering Evidence in International Criminal Trials—The view of the Defence Lawyer, in Michael Bohlander ed., International Criminal Justice: A Critical Analysis of Institutions and Procedures 79–86 (Cameron May Ltd. 2007).

[5] Treaty of Peace between the Allied and Associated Powers and Turkey, not ratified, 15 (supp.) AJIL 179 (10 August 1920) (“Treaty of Sèvres”), art. 230; See Jennifer balint, Genocide, State Crime, and the Law 96 (Routledge, 2012); See also Robert Melson, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Holocaust and Genocide Studies 22.1, 112–14 (2008), available at http://muse.jhu.edu/.

[6] Treaty of Versailles, 13 AJIL Supp. 151, 385 (1919), arts. 227–30.

[7] Id., art. 227; see also Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 16 (Little, Brown & Co. 1992).

[8] Treaty of Versailles art. 227.

[9] Id., art. 228.

[10] ICTY Statute, art. 10; Rome Statute, art. 20; Statute of the International Criminal Tribunal for Rwanda, S/Res/955 (8 November 1994), art. 9 (“ICTR Statute”); Statute of the Special Court of Sierra Leone (“SCSL Statue”) (15 August 2000), art. 9.

[11] Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 16 (Little, Brown & Co. 1992); See Yoram Dinstein, War, Aggression and Self Defense 117 (Cambridge University Press, 2005); See also Nigel J. Ashton, Anglo-Dutch relations and the Kaiser Question, 1918-20, in Neigel J. Ashton and Duco Helema Eds., Unspoken Allies: The Ango-Dutch Relations Since 1780 85–100 (Amsterdam University Press).

 

[12] Convention for the Creation of an International Criminal Court, League of Nations OJ Spec. Supp. No. 156 (1936), LN Doc.C.547(I).M.384(I).1937.V (1938); United Nations, Historical Survey of the Question of International Criminal Jurisdiction—Memorandum submitted by the Secretary-General: Question of international criminal jurisdiction, A/CN.4/7/Rev.1, 16, available at http://legal.un.org/ilc/documentation/english/a_cn4_7_rev1.pdf.

[13]  Some 24 defendants were identified, with 21 actually being tried. See Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 227, 654 (Little, Brown & Co. 1992).

[14] Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), Annex, (1951) 82 UNTS 279, art. 6.

[15] Charter of the International Military Tribunal for the Far East, 19 January 1946, 4 Bevans 21, (as amended 26 April 1946), art. 6.

[16]  William Schabas, Unimaginable Atrocities, Justice, Politics, and Rights at the War Crimes Tribunal 9–10 (Oxford 2002) citing Aide-Memoire from the United Kingdom, 23 April 1945 in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, US Government Printing Office 18 (1949); See also Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 32–34. (Little, Brown & Co. 1992).Taylor notes that the British plan died early on. Early in April 1945, President Theodor Roosevelt sent his advisor Judge Samuel Rosenman to discuss war crime questions in London. Rosenman met with Charles de Gaulle who stated that he favored trials rather than summary execution. Soon after, Roosevelt died. President Harry Truman made clear that he was opposed to the summary execution and supported the establishment of a tribunal to try the Nazi leaders.

[17] See Telford Taylor, The Anatomy of the Nuremburg Trials—A Personal Memoir 167–68 (Little, Brown & Co. 1992); See also Raymond M. Brown, The American Perspective on Nuremberg: A Case of Cascading Ironies, in Lawrence Raful Ed., The Nuremburg Trials: International Criminal Law Since 1945 24 (K. G. Saur Verlag GmbH, 2006) ; See also Victor Peskin, Beyond Victor’s Justice? The Challenges of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 4 J. Human Rights 213, 214 (2006).  

[18] Marcus Tullius Cicero, De Officiis, Translated by Walter Miller, (Harvard University Press, 1913), paras. 34, 36, available at http://www.constitution.org/rom/de_officiis.htm.

Legal constraints on the conduct of war in ancient Rome appear in Cicero: “As for war, humane laws touching it are drawn up in the fetial code of the Roman People.” Specifically, “no war is just, unless it is entered upon after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made. “Breaches of this duty by Roman citizens were adjudicated at trial. But to enemies of war, Roman law attributed neither duties nor rights, hence judgment and punishment of defeated foes was at Roman discretion. Still, the exercise of that discretion, as argued by Cicero, must serve justice.”

[19] Hermann Göring, Reichsmarschall and Nazi party leader, reacting to the Nuremberg indictment, cynically wrote: “The victor will always be the judge, and the vanquished the accused.” G.M. Gilbert, Nuremberg Diary 4 (Da Capo Press 1947); The “victor’s justice” criticism, made famous by Nuremberg, was addressed in one of the earliest proceedings in the ICTY.  See Prosecutor v. Tadić, IT-94-1-T, Decision on the Prosecutor’s motion Requesting Protective Measures for Victims and Witnesses (10 August 1995), para. 21 “The Nuremberg and Tokyo trials have been characterized as ‘victors’ justice’ because only the vanquished were charged with violations of international humanitarian law and the defendants were prosecuted for crimes expressed defined in an instrument adopted by the victors at the conclusion of the war. Therefore, the International Tribunal is distinct from its closest precedents.”

[20] For example, US Federal Judge Charles E. Wyzanski of the US District of Massachusetts remarked:  “At the moment, the world is most impressed by the undeniable dignity and efficiency of the proceedings and by the horrible events recited in the testimony. But, upon reflection, the informed public may be disturbed by the repudiation of widely accepted concepts of legal justice. It may see too great a resemblance between this proceeding and others which we ourselves have condemned. If in the end there is a generally accepted view that Nuremberg was an example of high politics masquerading as law, then the trial instead of promoting may retard the coming of the day of world law.” Charles E. Wyzanski, Nuremberg: A Fair Trial? A Dangerous Precedent, The Atlantic, 1 April 1946, available at http://www.theatlantic.com/magazine/archive/1946/04/nuremberg-a-fair-trial-a-dangerous-precedent/306492/4/.

[21] Harlan Fiske Stone, quoted in Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 176 (Viking 1968).

[22] Carla Del Ponte, Madame Prosecutor, Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, A memoir 224–25 (Other Press, New York 2009). Del Ponte, former Chief Prosecutor at the ICTR recalls President Kagame’s interference with the ICTR Prosecutions: “The Tutsi-dominated Rwandan government was effectively blackmailing the tribunal, sabotaging its trials of accused Tutsis in order to halt the Office of the Prosecutor’s Special Investigation of crimes allegedly committed by Tutsi-dominated Rwandan Patriotic Front (RPF) in 1994”; see also Colin M. Waugh, Paul Kagame and Rwanda: Power, Genocide and the Rwandan Patriotic Front 171, (McFrland & Co., 2004); See generally Rory Carroll, Genocide Tribunal Ignoring Tutsi Crimes, The Guardian, 13 January 2005, available at http://www.theguardian.com/world/2005/jan/13/rwanda.rorycarroll. “The international tribunal for Rwanda was criticised . . . for its failure to charge Tutsis suspected of killing Hutus in the 1994 genocide. Filip Reyntjens, a Belgian historian and expert witness on the genocide, said he would stop cooperating with the tribunal because no Tutsis from the Rwandan Patriotic Front rebel army had been indicted.”

[23] See ICTR Statute art. 1.

[24] For discussion of the African Union’s relationship with the ICC, see infra part h (Kenya and Africa); see also Kenneth Roth, Africa Attacks the International Criminal Court, N.Y. Books, 6 February 2014, available at http://www.nybooks.com/articles/archives/2014/feb/06/africa-attacks-international-criminal-court/; See also Max du Plessis et al., Africa and the International Criminal Court, Chatham House  2 (2013) available at

http://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/0713pp_iccafrica.pdf.

 

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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.

One thought on “JUST HOW RELEVANT IS THE ICC: A Viable Court of Last Resort or A Politicized Court of Low Expectations? Part I”

  1. I am reading your article as part of my internet review of literature on nuremberg trials , International Civil Convention political Rights and recent developments, Guantanamo, rendition, legalised torture etc ; in my view nuremberg trial constitute’s as a form of victor’s justice; My interest in theories of justice stem from my student years in 1987- 90 at London Guildhall University under tutor Michael Woodcock who thought me alot about Justice and political philosophy . I cannot comment on your literature as am reading it . However on your proposition regarding ICC , I concur it is a politicised court and I refer you to the following youtube lecture which really sums up my disposition towards the ICC.
    https://www.youtube.com/watch?v=yeTLPHBFJh0

    Regarding recent example of ICC , with reference to Kenyan cases ; I found it strange and paradoxical; that despite the ICC cases which began before elections in 2013 in Kenya ; with additional reports, Waki ; Truth and Reconciliation Report published 2007-12; the very candidates who were indited whose integrity and leadership ; suitability; ? raised questions and doubts ; who ought to have been prevented under the new constitution of Kenya from participation until clearance ; were not only allowed to participate before case determination ;
    Their election has changed public perception and Kenya towards the ICC ; Kenya is no longer a signatory to the Rome Statutue;
    The Supeme Court and Attorney General both facilitated for the candidates to participate and even in preventing full coopperation with the court and furthermore both candidates have now have transformed kenya away from the Rome statutue and signatory ; and are actively discouraging other African states from being cooperative with the ICC ;

    ICC cases have made no positive impact on victims of post electoral violence in Kenya ; were left on their own with no protection and many withdrew from or reluctantly participated;

    My question and concerns to you is are what about Colonial powers war crimes ? UK was willing to Prosecute Pinochet ? , i.e what about UK in 1950s as documented by Caroline Elkins;
    what about violations of nuremberg and ICCPR codes through torture and rendition? recently ;

    In my view justice has to be seperated from “victors justice” as articulated in Plato’s Republic by Thrasymachus; until all states are held under the same standards of justice regardless of their might and power ;Justice will remain that which is in the interest of victor.

    ICC has been very selective in it’s pursuit of justice ; uneven and hypocritical enforcement of justice ; consequently ICC has been a hinderance and an instrument of neo colonialism in Africa. So much for R2P……….

    I agree with the youtube Lecturer that African Leaders are also using the court to reduce competition and preventing oponents from power and political process participation.

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