"An Analysis of the Potential of the International Criminal Court to be the Solidifying Factor in the Global Human Rights Regime Based on the Concepts of Ius and Dominium"
Historically, it has been shown that no rights regime is effective without being connected concretely to power. In other words rights cannot subsist or even exist for that matter apart from or in absence of a power structure. Though peoples may claim their rights, which has occurred occasionally in the past, these claims are insignificant if they are not inextricably linked to some constituted and or legally binding form of enforcement.
The development of the human rights regime has largely been dependent on history. Only at very special times has the combination of Ius, or right, and Dominium, or power manifested itself in a way that the regime, which was created, endured the test of history. In the absence of this combination, regimes - many of which were founded on quite noble principles - have faltered and fallen by the wayside. It is our task as members of the human race to ensure for future generations that when the historical moment for the global human rights regime is manifest, that it will not bypass us and be lost.
The concept of an international criminal court is by no means a new one. However, its establishment in the summer of 1998 came at a crucial historical moment, 53 years after the human rights atrocities in Eastern Europe and the Far East, and concurrently with those in Rwanda, Yugoslavia, Chechnya, Haiti, and numerous other regions. The international community, in an ever-growing state of globalization, and directly following the Cold War, is in dire need of a human solution. In other words, a crucial historical moment has been reached for the global human rights regime to finally come into existence. Globalization has shifted the focus from the nation to the world and concurrently, from the citizen to the individual. In light of the increased interaction between human beings, a solution to the problems of fundamental human rights violations is not only in order, but is a dire necessity.
The Rome Statute of the International Criminal Court has achieved this high mark to a degree. However, due to some fundamental objections by certain key states that must be considered, it lacks the power that is truly necessary for it to work effectively and to administer law in the spirit of justice, human rights, and expediency.
In this paper, I will show first, that in order for any rights regime to be effective, it must entail a combination of Ius and Dominium. I will further show that those regimes that which do not meet this requirement are not only ineffective, but dangerous to their respective societal spheres. Lastly, I will show that the Rome Statute of the International Criminal Court as it currently stands does not satisfy the qualifications that are necessary for an enforceable human rights regime and, if ratified could endanger many lives because it will neither be backed by the United States nor nations with histories of flagrant human rights abuses.
I have divided this paper into five parts. Part I will examine the historical development of rights regimes and their context in the combining the concepts of Ius and Dominium, as well as their success and failure respectively. Part II will explore the historical development of the International Criminal Court, explaining why the present time is a special moment in the context of International Criminal Law and why it is imperative that action be taken now. Part III will consider the further codification of international human rights law and the establishment of the International Criminal Court in 1998. Part IV will offer a limited analysis of the issues presented by the Rome Statute as well as an argument against ratification of the Statute in its current state. In Part V, I will present a brief conclusion.
Part I: The Historical Context of Ius and Dominium in Rights Regimes and the Success and Failure Thereof
A. Pre-Rights and Rights Doctrine
For all intents and purposes, the use of the words Ius and Dominium began in Roman times. During this period, the conception of Ius was not that of a right to be claimed, a Dominium, rather a iura, or a duty in the most common sense of the word. As Tuck mentions:
÷iura are not plainly rights in the modern sense, a household did not have the right to put up with the overflowing gutter of his neighbor, he had the duty.
In more elevated terms, Ius was either "what is always fair or good (ius naturale)÷or what is best for all or most in a particular society (ius civile)." Gaius also indicates that these iura praeordium, or "servitudes" were more accurately seen as liabilities, implying an obligation to another in the sense that two parties were inextricably linked through an agreement, the bearer of the iura being the obligatoire. Through the expansion of the Roman Empire, the notion of Ius became entwined with that of classical Dominium, or property, and thus rights were now things "which one possessed as a result of one's relationship with the state, the public, or the Emperor," and became "available against determinate individuals." Though this new conception of ius and dominium are somewhat closer to the modern notion of right, it is safe to say that, based on an overwhelming amount of evidence, the Romans did not possess a conception of right at all.
One must consider next the transcendent interpretation of law that Aristotle and Acquinas advocate. They speak of a divine order of law. At the fore is the God himself and all of his direct commandments. Below that is the law of the Scripture, in this case that of the Old and New Testament, which contains the law of God. Below that is the law of nature, or natural law (ius naturale). Lastly is positive or human law. Once again, the conception of right still did not exist in its entirety. Divine law was the dominant rule of the day and the principle cannon of Thomism. Thus, in an exclusionary manner, Christendom marked the beginnings and ends of the civilized world.
The Enlightenment brings with it the abandonment of the medieval Christian viewpoint. In other words, there is a move away from metaphysics, the divine, and the transcendent in favor of an approach that is based on reason and natural law that can be realized by man's reason. Hugo Grotius is perhaps the earliest natural law philosopher, offering the view first that all human beings enjoy the "original rights of (analogical) dominium; they could take what they wanted knowing that they had a definite right to do so." Secondly, he concedes the natural right of punishment to all human beings, advocating Biblical forms of retribution including the infamous "eye for an eye" philosophy that has so often been advocated in the past to support retribution in the name of God.
In the work that is perhaps the starting point for the modern development of the conception of right, De Jure Belli ac Pacis, or The Rights of War and Peace, Grotius delineates a number of definitions of right. The first is a negative liberty conception, where right is merely nothing more than that which is just. Therefore, "RIGHT is that, which is not unjust." The second conception of right follows along the lines of a positive liberty, empowering the possessor to act in some particular way or receive the benefits of a certain privilege. As Grotius explains:
[In this sense], RIGHT is a moral quality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act. This right is annexed to the person, although it sometimes follows things, as the services of lands, which are called REAL RIGHTS, in opposition to those merely PERSONAL.
Under the third conception, a dichotomy is made between the notion of private right and superior right, or that which is intended for the greatest public good. The next conception is reminiscent of the Roman concept of iura as Grotius notes:
There is also a third signification of the word Right, which has the same meaning as Law, taken in its most extensive sense, to denote a rule of moral action, obliging us to do what is proper.
Lastly, Grotius invokes the concept of natural right, which he says is the "dictate of right reason" because it dispels the "moral necessity", leaving the individual to act solely on the basis of whether or not God forbids the act, for he is the creator of nature. Thus Grotius leaves the world with an individualistic view, placing sovereignty in nature and liberty in the dominium of material possessions.
Locke, on the other hand, is the first philosopher to successfully merge the concepts of Ius and Dominium. In his Second Treatise on Government, he invokes the notion that rights are the property of individuals. He accedes that not only may man lay claim to certain rights, among which are "Life, Health, Liberty, and Possessions", but, more importantly, he has the right to punish the crime for restraint and secondly, to seek reparation for damages done. This seems largely reminiscent of many current adversarial and retributive legal systems, which are based upon these notions, except that he law in this case does the punishing instead of the individual. However, it must also be noted that Locke is the first to advocate that man has the "Right÷of Preserving Mankind, and doing all reasonable things he can in order to that end÷", evoking a quasi-human rights doctrine. Perhaps most distinctly, he provides that the chief end of government is the preservation of the property of individuals, among which he includes life, liberty, and estates. Thus Locke provides for the first grounds on which human beings may claim their ius as dominium, which, as history indicates, has astonishing effects.
B. Manifestations of the Development of Rights Doctrines and Claims Revolutions
The empowering effects of the doctrine of Locke and his predecessors combined with the historical moment of the Whig v. Tory debate between the American colonies and England to provide the perfect setting for the first human example of a declaration of rights and freedoms that is ultimately empowering. The colonists actively claimed their rights and, as Locke and others invoke, were committed to defending them at any cost. As is noted in the Declaration of Independence, the founding fathers insist that:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just power from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, having its foundation on such principles and organizing its power in such form, as to them shall seem most likely to effect their Safety and Happiness.
And thus, contained in one paragraph is the claim to rights and the claim to defend them at all costs, even if it means abolishing or altering the existing government. This is perhaps the defining moment in the evolution of human rights because for the first time a people empowers themselves with rights that they claim to be natural and universal and agree to fight to abolish their existing polity, through force and bloodshed, if necessary for the end of maintaining these rights. However, this is not to say that Americans were emphatic advocates of a new global human rights regime. Actually, "even revolutions, wars, and violence could not change everything at once, and the resistance to any broad-based extension of human rights for all remained determined and strong." Therefore, while the American Revolution was certainly radical in its stance, there was a line of solidarity that resisted assault by the new regime.
The conservative aspect of this rhetoric is apparent in the United States Constitution and the Bill of Rights. In actuality, upon closer examination, one can see that the Bill of Rights is actually designed to ensure that the federal government does not encroach upon the rights of the states. This is perfectly within the spirit of localism of the day in America, which resisted centralized power and prized self-government. It is exactly this spirit and the realization that rights must be accompanied by power in order to be effective, that caused the American regime to be successful and largely enduring. As Arendt notes:
The point to remember is that the American Revolution succeeded, and still did not usher in the novus ordo saeclorum; that the Constitution could be established 'in fact', as 'a real existence÷, in a visible form', and still did not become 'to Liberty what grammar is to language'.
Thus, we can see that although the American Constitution and Bill of Rights did not represent the embodiment and empowerment of the fundamental freedoms and rights that are proclaimed in the Declaration of Independence, they do provide certain basic rights to citizens and represent the first effective rights regime.
As a counterpoint to the American case, one must note the principles and effects of the French Revolution as well. Whereas the American Revolution was a relatively conservative one, the French Revolution was violent and destructive. It formed a tabula rasa, leaving nothing of the old regime and even going in so far as to execute a majority of the French aristocracy.
The principles upon which the French Revolution was founded are delineated in the Declaration of the Rights of Man and the Citizen. This document embodies the universalism and global notion of Right that had been missing from history all along and went on to form the basis of the French Constitution. "It 'remains to this day the classic formulation of the inviolable rights of the individual vis-à-vis the state'," according to Lauren. Stosky comments that in fact:
it was revolutionary France's Declaration of the Rights of Man and the Citizen n4 in 1789 that made explicit two basic ideas: that the mere will of the strong is not a final justification for actions which affect the vital interests of individuals, and that the mere fact of being human is enough title for claiming goods which are necessary for an autonomous and dignified life.
Though much enthusiasm can be gathered for the concepts that are conveyed in this document - as it is the foundation of human rights doctrine as we properly know it - it ultimately had adverse and cataclysmic effects on the French people. As Arendt notes, "The inescapable fact was that liberation from tyranny spelled freedom for the few and was hardly felt by the many who remained loaded down by their misery." The rights that were granted to the citizens required an enforceability which unfortunately, in an attempt to make sure that citizens observed their rights, led to conformity, tyranny, and terror. In essence, the French rights regime failed because the Revolutionaries completely abandon the past, leaving no rule of law, nor common principle upon which to build the new Constitutional system. As Lauren notes, "Revolutionary leaders [in France], as in America, understood that the extension of genuinely equal rights would entail vast social and political consequences that they were unwilling to accept." The French rights regime ultimately failed because of a failure to properly constitute the Dominium of the rights enumerated in the Declaration.
C. The Residual Effects of the Declaration of the Rights of Man and the Citizen and the Effectiveness of the American Regime
In the 19th century, the rights movement took the shape of the anti-slavery "crusade". Efforts to curtail the slave trade were largely unsuccessful with slaves still in shackles worldwide, especially in America. Thus, "it became increasingly evident that the necessary prerequisite for genuinely abolishing the slave trade abroad hinged on emancipation÷" Fueled by the horrific stories being proliferated by such authors as Harriet Beecher Stowe, and the principles of Ius enumerated in the Declaration of the Rights of Man and the Citizen, abolitions began to organize feverishly. From Thomas F. Buxton in Britain, Augustin Cochin in France, the Conferação Abolicionista in Brazil, William Lloyd Garrison, to former slaves such as Frederick Douglass and Sojourner Truth, the world was mobilizing in large part to rid itself of slavery. However, it is important to note that it was not this Ius or doctrine that contributed to the successful end of slavery, but rather the positive political actions taken by nations that had the largest impact, namely proclamations and revolutions. It was only under the crushing weight of the Ius of doctrine combined with the Dominium of the Emancipation Proclamation (1863) and the Civil War (1861-1865) that finally crushed the establishment of slavery in the United States in 1865. The 13th, 14th, and 15th Amendments are the official constituting moments of the anti-slavery movement in America and the symbol that the American government will, in fact, defend the rights delineated therein with all of the forces available. In 1890, the General Act for the Repression of the African Slave Trade was signed in Brussels, which
÷bound them all to take practical action in repressing slave trading at places of origin as well as at sea and along inland caravan routes by capturing and searching slave ships, enforcing the punishment of offending slave captors and dealers, liberating captured slaves and granting them protection, sharing information and maintaining communication with each other, and creating for the first time an international machinery known as "the slave trade bureaux" located in Zanzibar and designed to facilitate the execution of the treaty.
In essence, the Act was a major step in international law, creating one of the first international moral standards of judgement and set an important precedent for other international normative institutions, most notably the League of Nations and the United Nations. In fact, the Act was so significant that it was still in effect at the outset of WWI.
We can see that the anti-slavery movement was the first truly global rights movement, one which was greatly successful due in large part to the efficient combination of Ius and Dominium along with the willingness of nations to cooperate for the common goal of the abolition of slavery.
In an analysis of the historical development of the early rights regime, some very important considerations are already present. First, it has been shown that when rights consist in ius alone, as in the philosophy of Aristotle, the Romans, Aquinas, and the Thomists, theses rights are hardly empowering and can be at most insignificant banter. Second, when the notion of ius is combined in theory with that of dominium, as is considered with the natural rights thinkers, namely Locke, Montesquieu, Rousseau, and Grotius, a basis is outlined for people to lay a "claim" to their rights. Third, when this conception of Right is combined with a gradual social evolution and reconstitution, as was present in the American Revolution, it is quite obvious that a lasting institution will be formed on the national level. Fourth, we can see that, as in the case of the French Revolution, when social revolution is too abrupt and a tabula rasa is formed, that any subsequent rights regime will become dangerous or possibly tyrannical, attaining the opposite of what it was originally intended for. Fifth, it can be seen that a declaration of rights is empowering because it allows a people to lay "claim" to their rights and explains to those in charge that the people are prepared to defend their rights at any cost. Finally, when rights doctrine is internationalized, as in the case of the anti-slavery movement, several things are necessary in order to form a successful regime: a rights doctrine that involves empowering rights, a declaration of those rights, a claims revolution by the victims of the oppression and later by all, social evolution on the national level, reconstitutionalization on the national level, an associated body of international law, an institution regarding the body of law, and finally an effective enforcement mechanism. Without the presence of the aforementioned, efforts to establish a rights regime of any sort on the international level will largely be in vain.
Part II: The Globalization of the Human Rights Regime, The Concurrent Development of International Criminal Law and the ICC
We have seen the historical progression of rights regimes from the mere Roman concept of iura to the well-established doctrine of the anti-slavery period in the United States. However, due to a number of factors that can generally be called globalization, attention was slowly, but surely shifting to the international sphere. The bloody revolutions that Europe witnessed in the early 1800s as well as the reign of British imperialism called for a redirection of attention for rights doctrine and activism. The international community once again summoned the likes of Grotius, Locke, Rousseau, Diedrot, and others in order to formulate a doctrine that would provide the basis for a more humane setting of war. The initial manifestation was international humanitarian law - ius in bello - which governed the rules of combat between belligerents and the people that war affected directly. The second manifestation was the development of human rights law, multilateral treaties and declarations that served to protect all human beings regardless of race, gender, creed, or age. The third and final manifestation was the development of international criminal law and the international criminal court, which appears to be the decisive step in the formation of a global human rights regime.
A. Ius in Bello
The cannon of the law of war, or ius in bello, is Grotius's De Juri Belli ac Pacis. In this work, he lays the framework for the "law of nations", which is the first recognized theoretical attempt to limit warfare through the rule of law. Though this text does provide the inspiration for other writers, it is not until 16 April 1856 that the Declaration Respecting Maritime Law was signed in Paris, the first modern manifestation of ius in bello. Before this, the wars of law were merely customary and were marginally successful for only three reasons according to Best. First, "they were of more than regional interest and potential appeal" because their fundamental principles were common to all cultures worldwide, even though many nations disputed the specifics. Secondly:
...the laws and customs of war were by the eighteenth century well embedded in every country's military tradition, helping to form the attitudes of all ranks and conditions of men from noblemen and generals down through the lesser gentry and professionals of the officer corps...to some indistinct petering out among the more civilized of the common soldiery.
Lastly, "the weight attached to those laws and customs by those who took them to heart owed nothing to the letter of treaty law, everything to the spirit of culture." However, true progress came in the form of codification and enforcement mechanisms because a number of inconsistencies and inflexibility's existed within them that made enforcement and ultimately justice largely impracticable.
At the height of the American Civil War, President Lincoln issued the Lieber Code, which was described as being:
÷not only the first notable example of a written code of war law ever issued by a government, but they were permeated through and through by a spirit of humanity; they were praised by the international jurists of Europe and they exerted a marked influence upon the subsequent development of the laws of war.
These early laws of war, especially the Lieber Code, paved the way for two formal strands of the law of armed conflict embodied in Hague Law and Geneva Law, and ultimately a successful international humanitarian law regime.
Hague Law encompasses "the reciprocal rights and duties of combatants" and thus it applies only to a very select group of individuals. However, it is the first attempt to ensure that soldiers, who exist in dangerous and autocratic conditions, are protected from further dangers and cruelties in warfare.
The law of war proper is enumerated in a number of Conventions produced at the Hague during the Peace Conference of 1899 and the Peace Conference of 1907. The St. Petersberg Declaration of 1868 formally marked the beginning of the reign of international law in armed conflict, emphasizing "proportionality, military necessity, and the rights and duties of states". Lauren points out the significance of this and other international agreements namely those that were drafted at the 1899 and 1907 Conferences:
For the first time, positive law in the form of international treaties established certain rights for the protection of individual victims of war. These early efforts began by acknowledging the "dictates of the public conscience," by focusing on the rights of those combatants wounded in battle and suffering in pain on land and sea, and by articulating the principles of the "laws of humanity."
Part of the effectiveness of this law came in the fact that it not only established the rights of combatants, but empowered combatants to claim those rights as well through binding international agreements. Ius and Dominium were combined successfully for the first time in the international forum.
While Lauren is correct in saying that combatants were protected, it must not be forgotten that combatants are not the only ones affected by war and are often those who are involved in injurious actions towards civilians and prisoners of war. In light of this, the second major strand of international humanitarian law was developed in Geneva in 1864 through the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (22 August 1864). This development occurred simultaneously with the creation of the International Red Cross in 1863 by Henry Dunant, which was designed to assist the wounded and sick in battle. Perhaps the most notable aspect of this body of law are the Four Geneva Conventions of 1949 and the two Protocols of 1977, which, in the aftermath of the bloodiest war in history, appropriately and concretely took a hard line to ensure that the rights non-combatants were protected to the fullest. These conventions have been cited in numerous instances
Geneva Law is the precursor to international human rights law, as it considers "universal principles of humanity" and not the reciprocity of Hague Law. Thus, Geneva Law took Hague Law one step further, relating to: the treatment of the sick and wounded in battle, the treatment of prisoners of war, and the treatment of civilians and victims of war in general. Lauren regards the evolution of international human rights law, specifically Geneva Law, in the following manner:
They continued by establishing rights for individuals captured as prisoners of war. They then expanded the scope of rights still further by including the protection of civilians to be free from torture, mutilation, pillage, attack on undefended dwellings, and destruction of places of worship. Together, they all helped to lay the critical foundations for humanitarian law recognizing that individuals in time of war possessed certain basic human rights and that their protection was a legitimate issue that demanded international action.
Thus it can be seen that international humanitarian law was significant in being the first international legal attempt at asserting the global rights of individuals, though in actuality, the effect was far from global.
B. The Development of International Human Rights Instruments and Law
Human rights law is fundamentally different from international humanitarian law in a number of ways. First and foremost it is designed on universal principles, which transgress borders and time, bearing the likeness of the natural rights mentioned above. Second, it is not largely treaty based, as was international humanitarian law, in large part because these rights have been more difficult to agree upon. Thirdly, because of the first two aspects, it is much harder to enforce and consequently, to develop a regime that will protect those rights from violation and or punish violators. In essence, human rights law is the next step in the direction of a global human rights regime, the subsequent codification of which is displayed in the Rome Statute of the international criminal court.
Human rights law developed by and large from natural rights principles in combination with the major tenants of international humanitarian law. Human rights "are not liberties, powers or immunities granted by governments or bestowed by condescending humanitarians; they are claims to prior entitlement. They are demanded, not pleaded for, and if they are not vouchsafed, the legitimate response is 'not one of disappointment but of indignation'." As such, they demand protection across borders as well as within borders, regardless of whether or not governments want to protect them. With this as a goal, human rights advocates have worked long and hard to develop a body of international law that is not vacuous and carries with it significant international clout.
Human rights can roughly be divided into three strands: "first generation" or civil and political rights; "second generation" or social and economic rights; and "third generation" or rights of solidarity. However, the rights that are of interest to this study are those that are more basic or fundamental, largely because the others yield much controversy across borders and regions. Therefore, the aforementioned fundamental human rights are security, sustenance, and life. By concentrating on these rights alone, which the vast majority of states agree on as fundamental, we can easily see the progression of human rights from doctrine and declaration to codification and law.
The instruments that were designed to protect these fundamental human rights are many and varied, but there are certain key documents that have served as a guide for both nations and the international community throughout modern history. The first and most prominent assertion of fundamental human rights is found in the United Nations Charter, which was adopted on 26 June 1945. It purports "to achieve international co-operation...in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion..." This was followed by the Universal Declaration of Human Rights, which is the first document that allows all human beings to claim the fundamental human rights stated above. In the Preamble, it states that "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." Though the last part of this statement might seem a bit idealistic, its principle is solid, and it has been used as a basis for claims revolutions worldwide, both in and out of the legal realm.
The first embodiment of the rights discussed in the Universal Declaration of Human Rights in a legally binding treaty is found in the International Covenant on Civil and Political Rights (ICCPR) which was adopted at the United Nations in 1966. It provides that:
Certain rights...may never be suspended or limited, even in emergency situations. These are the rights to life, to freedom from torture, to freedom from enslavement or servitude, to protection from imprisonment for debt, to freedom from retroactive penal laws, to recognition as a person before the law, and to freedom of thought, conscience and religion.
The ICCPR also established the United Nations Commission on Human Rights as well as the United Nations High Commissioner on Human Rights. The First Optional Protocol to the ICCPR states that any state party recognizes the competence of the Human Rights Committee and its ability, "to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State of any of the rights set forth in the Covenant." This is the first instrument that allows individuals to file complaints in an international forum, even though they must attempt domestic means first. However, it still does not provide a mechanism for enforcement, the vital element of dominium that a rights regime must posses in order to be fully empowering.
C. International Criminal Tribunals, The Codification of International Law, and the Development of the International Criminal Court
Numerous attempts at enforcing international law through a legal forum have been attempted over the years, but none has been successful as a legally binding means of administering justice in a human rights context. Among these attempts have been the International Military Tribunal at Nüremberg (IMT), which were the first international courts (ad hoc) as you will, the International Criminal Tribunal for Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).
In order to understand the successes and failures of each of the tribunals, I turn to a historical analysis. The IMT was established because "Nazi warmaking appeared indistinguishable from organized plunder, gratuitous destruction, and unrestrained killing," and "It was not a calamity to be overcome, but an unprecedented crime to be punished." With this end in mind, the IMT was established by the United States, France, Great Britain, and the USSR, on 8 Aug. 1945, having jurisdiction over the following crimes:
While sections (a) and (b) relate to ius in bello, one can not help but notice that section (c) is distinctly different from a legal perspective. For the first time, crimes "against humanity" were punishable under law. Perhaps even more curious was a small phrase that started the quest for an international human rights regime. In stating that these crimes include those committed "before or after the war", section (c) establishes a transcendent forum for the enforceability of human rights law. Violations no longer were limited to war. The realm now included peacetime as well. Never before "had a legal proceeding attempted to make government leaders internationally responsible as individuals for crimes against humanity covering so much time, so many nations, or so many people, including their own citizens." Thus, the IMT marked the beginning of the end of impunity for crimes against humanity for all times and for all people. Yet, there was still much need for expansion because crimes were ill defined and there was much speculation into the fairness with which evidence was collected, the rights of the defendants, and the justice of the sentencing in the spirit of human rights.
The IMT created the impetus for expansion of international criminal law and justice. In 1948, the United Nations adopted the Genocide Convention, which was designed as a code for the international prosecution of this crime during times of both war and peace. Perhaps its most compelling facet was that it urged the international community "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide." This phrase compelled the international law commission (ILC) to begin to think about the possibility of a permanent international criminal tribunal. Although two draft statutes of an international criminal court were considered in 1951 and 1953 respectively, the issue was tabled because the General Assembly of the United Nations could not agree on the definition of "aggression". Though a definition was finally agreed on in 1973, the topic was tabled until further notice.
Codification of international law with the intention of true enforceability came in 1954, when the ILC introduced the Draft Code of Offenses against the Peace and Security of Mankind [hereinafter Draft Code of 1954]. However, for much the of the same reason that the 1953 Draft Statute of the international criminal court failed, so to did the Draft Code of 1954. The one notable attempt to restart the drafting of an international criminal court statute occurred in the wake of the UN adoption of the International Convention on the Suppression and Punishment of the Crime of Apartheid in 1973. As Marquardt notes:
As part of the general United Nations interest in vigorously pursuing the topic, the General Assembly directed the UN Human Rights Commission to draft a statute for an international criminal court to implement the convention. The Human Rights Commission in turn delegated the task to a long-time proponent of an international criminal court, M. Cherif Bassiouni. Bassiouni's draft, though keyed to the Apartheid Convention, was easily generalizable and specifically contemplated an expansion of the court's jurisdiction to other crimes. In the end, the United Nations did nothing further with Bassiouni's draft.
Much of the disagreement was due to the tensions produced by the Cold War and the ILC, along with the United Nations, realized that further discussion would have to be postponed until after the international situation improved.
Thus it can be seen that although there was an initial recourse to natural rights theory, human rights law, codification, and an international criminal court, the historical moment was not correct for the manifestation of a global human rights regime. As Randall notes, "domestic jurisdiction to prosecute international crimes [was] particularly important, because 'mankind [had] not yet proved mature enough to set up an international criminal court." The nations of the Cold War world were not willing to sacrifice their sovereignty in the name of ius - and rightly so - and hence the necessary dominium was lacking for a complete realization of this concept.
Part III: New Impetus for the Development and Further Codification of International Human Rights Law and the International Criminal Court
Towards the end of the Cold War, the idea of an international criminal court was reintroduced by Trinidad and Tobago in 1989, not because of grave human rights violations in the region, but for the dangers incurred by large-scale narcotic drug trafficking.
With the end of the Cold War, an explosion in the interaction caused from globalization, the Persian Gulf War, and the renewed impetus from narcotic drug trafficking, the historical moment for working on the international criminal court was finally upon the international community. As M. Cherif Bassiouni notes of the spirit of the day:
We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality. If the United States and the Soviet Union can accept mutual verification of nuclear arms controls, then surely they and other countries can accept a tribunal to prosecute not only drug traffickers and terrorists, but also those whose actions constitute such international crimes as aggression, war crimes, crimes against humanity and torture.
The world was just a couple of steps away from the establishment of an international criminal code and the manifestation thereof in an international criminal court. The recent development of both can be divided into three sections. The first will treat the two ad hoc international criminal tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and the shortcomings of each. The second will consider the further development and codification of international criminal law, driven by the mounting number of complex emergencies, refugee, and the subsequent development of the ILC Draft Statute of the International Criminal Court [hereinafter ICC] (1994). The third and final section will discuss the work of the Preparatory Committee, the developments in the Rome Conference, and the establishment of the ICC.
1. The ICTY and ICTR
With the increasing number of complex emergencies has come an increased number of human rights abuses and concurrently an outcry for justice. Building largely from the precedents at Nüremberg, but adding a distinctly different principle, the ICTY and ICTR were a major step in the direction towards the establishment of a universal enforcement mechanism. The ICTY or ICTFY as it was originally known, came into existence as legally binding on 25 May 1993, sitting at the Hague. Unlike the Nüremberg Tribunal, which had only presented one side as being liable for the atrocities that were committed, the statute of the ICTY does not make that distinction. Even heads of state are not immune from prosecution, a provision that the great powers of the Cold War would have chuckled at gladly 50 years beforehand. The ICTY also has a more extensive jurisdiction than the IMT, including, "(1) grave breaches of the Geneva Conventions of 1949; (2) violations of the laws or customs of war; (3) genocide; [and] (4) crimes against humanity. However, its inefficacy has been blatant and can be attributed, by and large to the politicization of the Prosecutor's office as well as the failure of the Security Council, for which the ICTY was created, to implement any of the decisions and judgements made therein. The ICTR, much like the ICTY, was created by a Security Council initiative in an attempt to bring justice to the victims of the atrocities that were occurring in the Great Lakes Region of Africa. Actually, the statute of the former was essentially a replica of that for the Former Yugoslavia, adapted for the Rwandan situation, but which maintained the fundamental principles of the former.
The importance of the two recent international criminal tribunals was fourfold. First, they demonstrated an increased possibility of international prosecution of war criminals and a furtherance of ius. However, they also showed that once again, if the support of power was not present, in other words that ius was not in combination with dominium, the regime would fail and ultimately it has. This is not to say, though, that these two tribunals made no contribution to the growth of international law, for as mentioned above, they certainly did. Second, they raised a number of criticisms about the ad hoc approach and its incompatibility with achieving international criminal justice. The Security council is facing "tribunal" fatigue - the malaise that comes with drafting a new statute, selecting a prosecutor, electing judges, and appropriating funds each time there is a human rights crisis. In addition, China has admitted its hesitancy about the precedent of ad hoc tribunals because it too might one day be the subject of criminal prosecution. Furthermore, there was a growing suspicion and international abhorrence for the Security Council's involvement in the creation of tribunals. As Brown notes:
The creation of these ad hoc tribunals has advanced the cause of international justice, but it has also raised questions of fairness and political privilege. For example, why have such tribunals been created for the Former Yugoslavia and Rwanda but not for Chechnya, Somalia, Cambodia, or the Persian Gulf War? The answer lies in the process of their creation. The decision to create an ad hoc tribunal falls to the UN Security Council and is therefore subject to the full range of considerations that influence that political body. No matter how successful the ad hoc tribunals may be at dealing with specific crisis situations, their selective creation and narrow focus creates an impression of unfairness and unequal treatment.
The third consideration was that these ad hoc tribunals have cost an exorbitant amount for the level of efficacy that they have achieved thus far, which begs for consideration of an alternative for international justice. The final consideration was that domestic tribunals were inadequate for prosecuting the crimes described in the statutes because of their scope and aspiring universality.
2. Renewed Efforts for the Codification of International Law
The violence and human rights abuse that was at the heart of the drive to create the ICTY and the ICTR also drove the International Law Commission to renew codification efforts in an attempt to overcome the problem of nullem crimen sine lege - no crime without law - in the international arena. In a report issued by the ILC in 1990, it not only cited that the number of human rights violations were on the rise, but furthermore, that an international criminal court was the only foreseeable method of dealing with these abuses. About a year later, upon a mandate from the United Nations, the ILC submitted a draft international criminal code [hereinafter 1991 Draft Code]. The Code, an improvement on the 1954 Draft Code mentioned above, criminalized such offenses as "the recruitment, use, financing, and training of mercenaries; committing or ordering acts of international terrorism; engaging in illicit traffic of narcotic drugs; and any willful and severe damage to the environment." Much in concurrence with the ideas of ius and dominium presented in this paper, "critics [claimed] that problems of uniformity will continue to exist without an international court enforcing the international code." And thus the first formal call for the combination of ius and dominium for the purpose of establishing an empowered international legal system was made.
In 1994, the International Law Commission successfully completed a draft statute for an international criminal court [hereinafter 1994 Draft Statute] which was based on the following five fundamental principles:
(1) the ICC should be established by treaty and should not be created by an organ of the United Nations or through an amendment to the UN Charter, (2) the ICC would not be able to exercise jurisdiction over states, only individuals, (3) the jurisdiction of the ICC should be limited to those international crimes specified in existing treaties, (4) the ICC would serve as a supplemental justice system for national justice systems and (5) the ICC would not operate on a permanent basis, rather it would operate only when it was necessary.
What is evident is that this statute was both a continuation and a departure from customary international law principles. In the first place, regarded sovereignty very closely, based largely on the belief that true power comes only from the political. Emphasis was placed on treaty law, crimes coming from existing treaties, supplemental international justice, and operation on an ad hoc basis. However, it was very much a departure from previous attempts in that it demanded that the court be independent to free it from the politicization of the Security Council. It also conferred jurisdiction over individuals irrespective of whether states were involved or not.
The opinion was mixed to say the least. The 1994 Draft Statute fell under harsh criticism by many human rights advocates including Bryan MacPherson. Mr. MacPherson said regarding the draft that:
Both the Draft Statute and the position taken by many states in the negotiations reflect an extremely myopic vision of the contribution that an international criminal court could make toward a more stable and just world order. The focus has been on only one factor of the criminal justice equation, that of increasing the likelihood that those accused of international crimes, that of increasing the likelihood that those accused of international crimes will be effectively prosecuted. Although every effort is being made to ensure that the court will itself administer justice fairly, the superiority of an international criminal tribunal over national courts in furthering the second factor of the criminal justice equation, that of providing fair, unbiased trials, has received scant recognition.
However, it must be recognized that this draft was produced only five years after the ending of the Cold War with realpolitik still at the helm and state supremacy at the forefront of the international agenda. It takes time for states to adjust to and advocate new power schemes and, as I have mentioned earlier, empowering rights regimes and international legal instruments is imperative for a furtherance of the regime. Even if it means that the crimes under the court's jurisdiction can not be as expansive as some would like, it will benefit the international community much more that an effective court has been established and that its jurisdiction, procedure, judgement, and sentencing are recognized by a large portion of the power structure of the world.
To further address the debate that was developing, the United Nations established the Ad Hoc Committee on the Establishment of an International Criminal Court in 1995, which considered the 1994 Draft Statute. Believing that there was sufficient evidence that an international criminal court would be feasible, the General Assembly established the United Nations Preparatory Committee [hereinafter PrepCom] on 11 Dec. 1995. PrepCom held six sessions between 25 March 1996 and 3 April 1998 under the supervision of Adrian Bos (Netherlands). The ultimate product of PrepCom was a consolidated text of a statute for a permanent international criminal court, which was presented to the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court [hereinafter Rome Conference] which was held in Rome from 15 June to 17 July 1998.
The events of the Rome Conference represented a true and pronounced change in the attitudes of nations towards international criminal law. Whereas merely four years earlier, the ILC draft statute addressed a limited number of crimes and potential jurisdiction, the PrepCom Draft Statute, approximately 200 pages in length, was far from being limited. The historical moment was truly upon the international community for an international criminal court. Perhaps a most remarkable departure from the traditional formulation from international criminal law was the presence of the NGO Coalition for the Establishment of An International Criminal Court at the Conference. As is evident from a number of speeches made, the willingness to cooperate in the spirit of justice permeated the conference from beginning to end. However, the truly outstanding result of these diplomatic efforts was that, for the first time in the recorded history, a permanent international criminal court was established. With a vote of 120 in favor, 7 against, and 21 abstentions, the action by the Plenipotentiaries to adopt the Rome Statute was virtually unanimous, with the exception of a few prominent nations, namely, the United States.
Part IV: An Analysis of the Rome Statute: Objections, Treatment, and Suggestions as the Next Step in the Formation of the Global Human Rights Regime
Thus, in passing the Rome Statute it seemed like the end of the story. Ius was successfully combined with Dominium in a legally binding treaty in a unique historical moment. Or was it? Though the United States has had a history of lagging behind in signing international conventions and treaties, it seems a bit odd that one of the largest proponents of the Court is now actually waging an active war against it. Therefore, U.S. objections among others must be considered seriously in order to find whether or not the Rome Statute is efficacious in serving to protect and enforce human rights for all.
The most notable aspect of the opening section of the statute is that it provides that its jurisdiction over international criminal matters, "shall be complementary to national criminal jurisdictions". The dissenting voters have long been proponents that criminal jurisdiction is the proper realm of the sovereign state. However, traditional notions of sovereignty are losing their footing in this increasingly global world and it is no longer tolerated that human rights violators hide behind that looming but withering shield. As Jamison notes:
The absolute doctrine that a state is supreme to its own authority, and need not take into account the affairs of other nations, is no longer tenable. In contrast, an international criminal court will help nations to protect their sovereign rights over domestic issues of crime committed by foreign individuals, because it empowers them to act on violations of criminal law that were previously out of their control. Therefore, it is more likely that "by limiting sovereignty, a state proves that it is sovereign.
It can now be seen that in submitting some authority to a supranational power, the state gains in its overall strength and ability to fight impunity. This type of gain is necessary with the increasing number of human rights violators and international criminal that are plaguing the international community today.
The Rome Statute empowers the ICC to have jurisdiction over the following crimes: genocide; crimes against humanity; war crimes; and the crime of aggression, allowing the court to have full interpretive power over said crimes. The subject-matter jurisdiction of the court is derived from "the Hague Conventions, the Geneva Conventions, and the Additional Protocols" which are well-established treaties in international customary law, thus being easy to incorporate into the statute. In addition, the Rome Statute takes the Additional Protocol II one step further. Instead of demanding that a recognized-armed force must be a party for prosecution of war crimes, the statute leaves this question open-ended and thus extends its jurisdiction greatly. As Bos notes, "This threshold lowering is important because it reduces the chances that a situation arises in a state than can be qualified neither as an internal conflict nor as an emergency as provided for in the human rights conventions. A better protection of human rights may be achieved because of this reduction." In addition, the section dealing with crimes against humanity is empowered during times of war or peace and is designed to protect all "without any distinction founded on grounds such as gender, age, race, color, etc." This principle of universalism is unique and gives the subject matter of the Court the first true tinge of globalism in history.
The Statute's treatment of crimes against women and children is quite notable as well. Women are given recourse for the crimes of "rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity" for the first time in a legally binding forum. Secondly, children are prevented from serving in the military as soldiers if they are under fifteen. These developments reflect the international recognition and commitment to the protection of traditionally unprotected groups in international law.
Due to a lack of available materials analyzing the legal portions of the text, as well as my own limitations due to my lack of knowledge on the details of international criminal law, I can only comment on the aforementioned. As to the most controversial section of the Statute, the matter of referral, I can only say that it is objectionable because of its apparent impotency to forcibly deal with international criminals and bypass the bureaucracy of the United Nations and national legal systems. However, it must be noted that the ICC is intended, as was presented in Article 1 to be complementary to national legal systems, not however, to replace them. Once again, I must reinforce the notion that a purely international legal system, though ideal and perhaps foreseeable in the not-too-distant future, is not a possibility at the moment. Thus, we must make the best of what the legal instruments available and encourage an evolutionary process in the name of progress. For a truly effective combination of ius and dominium has not come from violent social upheaval, as was the case in the French Revolution, but rather, as was the American case, in slow and cultivated changes that were often invisible to the human eye. The proof of this is in the fact that the American regime is the oldest surviving rights regime in the world. However imperfect it may be it lives on and evolves in the name of progress every day.
In light of this, if the International Criminal Court is ratified in its current state, it could possibly become dangerous, just as the Declaration of the Rights of Man and the Citizen was dangerous during the French Revolution. The support of the United States and the other dissenters is imperative for the future efficacy of the Court, the ending of impunity, and the avoidance of disaster. Proponents of the ICC, of which I count myself, should actively pursue the support of the United States. This will at least enable some of the violators of human rights to be punished and at the same time, will open up lines of communication for change. A very important lesson to be learned from this experience is that the hard line is not always the best line.
Part V: Conclusion
From history, it can be seen that the only effective rights regimes have been those that effectively combine Ius and Dominium. Those that do not fail and can often become more of a threat to a society than a good. The history of rights regimes has shown as well that expansion of rights comes slowly and that while exclusionary in some regards, their direction is always progressive.
The global human rights regime is upon us, yet it has not come to fruition in large part because of the failure to connect an ever-expanding rights literature to solid power. The International Criminal Court was the first hope at the union of ius and dominium in the international sphere on a permanent basis. However, due to fundamental objections made by the dissenters to the Rome Statute, it does not appear if the Court will take effect any time soon. In light of this, I urge the international community to seize the moment at hand and attempt to work with the dissenting nations in addressing their concerns about the jurisdictional matters of the court before it is too late. History presents us with only certain opportunities to change the course of human events and when they appear we must seize them. The International Criminal Court is both a step in the right direction and a mild setback. However, who could walk before they could crawl?