Establishing an International Criminal Court and an International Criminal Code - Observations from an International Criminal Law viewpoint

II. The procedural level: observations on an ICC

a) Legal basis and jurisdiction

A legal basisof an ICC can, in principle, be established in two different ways: by an international treaty or by a Security Council (SC) resolution. The advantage of the latter model, employed in Yugoslavia and Rwanda, is evident. It allows the establishment of an ICC as a subsidiary organ of the SC with the approval of only nine of the 15 - members of the SC, including the five permanent members (article 27 III UN-Charter).¹⁵ Therefore, there is no need for long treaty negotiations or countless substantive compromises¹⁶. However, in spite of this rather practical argument, the legal basis of such a tribunal is questionable from a public international law viewpoint.¹⁷ Although it can certainly be argued that in the case of grave human rights violations an international right and even duty to prosecute exists (which can be implemented against the will of the affected state if this state is not willing to prosecute seriously)¹⁸, an ICC's legitimacy depends heavily upon the acceptance of its jurisdiction by as many states as possible. This, in turn, is a prerequisite of global acceptance and effective implementation of its sentences. Against this background, the SC model appears to be a kind of coercive measure that can only be justified in exceptional cases which call for an ad hoc jurisdiction in order to satisfy an internationally recognized need for action (as in the case of the former Yugoslavia) or the demand of a new government (as in Rwanda). In fact, in such a situation the establishment of an International ad-hoc Tribunal can be based on chapter VII of the UN Charter with quite convincing arguments.¹⁹ The treaty model, on the other hand, does not hinder the establishment of an ICC as an organ of the UN, but rather - and this is the important difference - requires that the ICC will be established as a main organ in addition to the other UN organs on a treaty basis (as the ICJ, compare article 7 paragraph 1 UN Charter with article 1 ICJ Statute).²⁰ Given the recent comments of the government delegations in the UN ad hoc Committee, it seems to be clear that an ICC will be established as an "independent judicial organ by means of a multilateral treaty".²¹

Secondly, the question of the subject matter jurisdiction of an ICC arises. Should only those crimes which are "beyond any doubt part of customary law"²² - as in the SC statutes and to some extent the ILC- and Alternative Drafts (Art. 20 para. 1) - be included or all crimes or offences codified in international instruments?²³ It is clear that there is an inverse proportion between the number of included acts and assenting states: the more punishable conducts included in the jurisdiction, the fewer the states that will be willing to accept jurisdiction.²⁴ This problem can be reduced by referring all crimes that are (only) recognized by treaty to an ad hoc jurisdiction with the consequence that the parties to the statute can still decide whether they are willing to accept an ICC's jurisdiction on a case by case basis. The more important exclusive (original/inherent) jurisdiction implying an ipso facto acceptance of the ICC's jurisdiction with the act of becoming party to the statute should be limited to the most serious crimes of concern to the international community. This is the position of the ILC²⁵ and the majority of states involved in the current debate.²⁶ It is a practical compromise between the politically feasible short-term and legally desirable long-term objective: "We can start with the establishment of a court with a modest jurisdictional scope, provided that it can one day ripen into the type of universal court many of us hope for".²⁷ The ad hoc jurisdiction would have the function to gain the confidence of states and to convince them of the necessity of an ICC in order to bring about the general acceptance of its jurisdiction in the long run.²⁸

However, a mere reference to international treaty instruments is not convincing and entails the risk of trivializing the role of the court.²⁹ This method, the so called "treaty-approach", leads to contradictions if the treaty character of a particular crime is taken as the sole or decisive indicia of its importance. There are crimes which are virtually unrecognized by the state community in spite of their codification in international treaties, for example mercenarism. Or there are treaty crimes, whose wrongfulness is less than that of other non-treaty crimes, which are nevertheless recognized by customary international law. In spite of this fact, these non-treaty crimes do not - according to the treaty approach - fall within the jurisdiction of an ICC. Bassiouni, for example, includes within the jurisdiction relatively minor and practically irrelevant treaty "crimes" such as "offences against international civil maritime navigation", "drug offences"³⁰, and "international traffic in obscene materials" but does not include extra-legal executions and disappearances.³¹ The mere formal argument that for the latter crimes treaties do not exist is unconvincing as the scope and gravity of these crimes make them part of customary international law subject to duties of prosecution and punishment.³² Moreover, offenses codified in international instruments are frequently too vague to be directly applicable in national law; therefore, they require an internal process of transformation.³³ If one wants to include all internationally recognized crimes one should not limit this exercise to universal treaties. Instead, it is much more consistent to extend subject matter jurisdiction only to those crimes whose recognition by general international law, including customary law, is beyond question - irrespective of their codification in international instruments.³⁴ This approach does not imply a qualitative "less" compared to the quantative "more" of the treaty approach, particularly if the crimes against humanity recognized in all statutes are interpreted broadly. In conclusion, a kind of combined approach as pursued by the ILC- and Alternative Draft (Art. 20) appears to be most convincing.³⁵ Adopting this approach, it is, for reasons of certainty, surely preferable to include a list of treaty crimes in an annex to the statute.³⁶

A further point to consider is the relationship between an ICC and national jurisdiction. The ILC follows the "principle of complementarity" stating in the preamble that an ICC "is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective"³⁷. Although the principle is part of the context within which the statute should be interpreted³⁸, its practical implications are not very clear. The text of the Draft itself has addressed this central question only indirectly (Art. 35). Consequently, some states understand it as "a strong presumption in favour of national jurisdiction", others do not.³⁹ The very question is in which cases an ICC should "complement" the national jurisdiction, or, to use the words of the ILC: when is a trial procedure not "available" or "ineffective"? The question is closely linked to the subject matter jurisdiction of an ICC and to the role national jurisdiction can play in a given case. Taking seriously complementarity implies in principle the limitation of the ICC's jurisdiction to a few "hard core" crimes.⁴⁰ In these cases, the ICC's intervention depends on the functioning of the national criminal justice system concerned. If it is not functioning at all, i.e. neither the capacity nor the will to investigate seriously exist, the ICC's jurisdiction is compelling. If it functions in principle, i.e. more or less serious investigations are initiated, the difficult question arises where to draw the line between a sufficient and insufficient seriousness, the latter literally forcing the ICC to claim jurisdiction. The ILC's commentary to the preamble envisages a very high treshold stating that "it is intended to operate in cases where there is no prospect of ... persons duly tried in national courts".⁴¹ The states themselves only point out that "the intervention of the court in situations where an operating national judicial system was being used as a shield required very careful consideration".⁴² It clearly follows from that that we have to deal with a complementary or "supplemental" ICC⁴³, whatever the exact meaning is.

b) Procedural and other rules⁴⁴

The procedural rules follow the accusatory system in so far as the prosecutorial organ investigates and prepares the accusation. However, the tribunal intervenes in a kind of intermediate procedure at latest after the filing of the accusation; it can confirm, refuse or modify the accusation. In a treaty model the question arises whether the SC itself, independent of a member state, can initiate proceedings on the basis of a measure under chapter VII of the UN-Charter.⁴⁵ One may be skeptical of the legitimacy of such an action, but ultimately it cannot be totally excluded if one wants to avoid the parallel creation of ad hoc tribunals by the SC in cases it SC does not feel its interests taken into account sufficiently by the ICC.⁴⁶ The question does also play a role for the further proceedings since - at least according to the ILC Draft (Art. 23 par. 3) - a prosecution arising from a situation being dealt with by the SC under chapter VII may not be commenced without the SC's prior authorization. Generally speaking, the crucial issue is to find the right balance between the necessary independence of an ICC and the primary role of the SC in the maintenance of international peace and security. States have particulary criticized the SC's exclusive exercise of jurisdiction in the case of agression (Art. 23 par. 2 ILC Draft).⁴⁷

In all other cases the prosecutor must prove that there is a prima facie case, and the tribunal must determine the admissibility of the accusation. However, the ILC does not provide a definition of a prima facie case. It must be remembered that the mere accusation represents an important interference in the rights of the affected persons; for that reason, a prima facie case should be interpreted restrictively. Rightly, therefore, the Alternative Draft defines it as "a credible case which would - if not contradicted by the defence - be a sufficient basis to convict the accused" (Art. 27 para. 2). This definition is similar to the so-called strong suspicion of a criminal offence (dringender Tatverdacht) employed by the German Code of Criminal Procedure (Strafprozeßordnung) as a requirement for an accusation (Anklage).

Art. 37 para. 4 ILC-Draft further provides for the establishment of a special "indictment chamber" which, however, does not appear in the provisions about the chambers (Art. 9). The function of this chamber is to carry out a written evidentiary procedure or evaluation. The resulting "record of evidence" can be used in a subsequent trial. This procedure is dangerous for the accused and should, therefore, only be admitted if he has legal assistance.⁴⁸

The order of the trial phase is of similar importance. Reading of the indictment and the statement as well as the personal and substantive examination of the accused should take place before the evidence is heard. The presence of the accused is quite significant for his defence. Different solutions are possible. The ILC Draft and - in a more restricted way - the Alternative Draft permit a trial in absentia (Art. 37 para. 2)⁴⁹; not so the statutes for the former Yugoslavia and Rwanda. For practical reasons, a trial in absentia cannot be absolutely prohibited, although political and legal criticism of such trials has to be taken seriously.⁵⁰ In any case, exceptions should only be permitted in clearly specified circumstances. The proper role of the tribunal - quite active as in a mixed instructorial (instruktorisch) system or passive as in a pure adversarial system - is a matter for discussion.⁵¹ Ultimately, a combination of the two dominant systems - the Anglo-American adversarial and the continental mixed systems - should be reached.

All statutes seperate the actual judgement - concerning the guilt of the accused - from the sentencing phase. Those in favour of such a separation contend that it prevents the tribunal - normally a jury - deciding on the question of guilt from being improperly influenced by information about the personal circumstances of the accused (information that is only necessary for sentencing purposes); however, there is no jury in an ICC, and it cannot seriously be claimed that no information regarding the personal circumstances of the accused will reach the judges of an international tribunal nor that such judges are immune to improper influence. Therefore, the division of the trial into two phases seems to be unnecessary.

Given the lack of international norms with respect to the scope of penalties one must refer to national law.⁵² It is highly unlikely that there are international standards at all. Therefore, a mere reference to imprisonment or fine as types of penalties (cf. Art. 47 ILC-draft) without specifying the length or amount could conflict with the nulla poena principle.⁵³ In this context, the general question of the applicable law arises. There will only be a satisfactory solution if the applicable law in an individual case is either linked to the corresponding jurisdiction in that case or the statute itself clearly determines the applicable law. The SC has ignored these questions in the statutes of the ad hoc tribunals. The ILC-Draft has addressed it, but in an unsatisfactory fashion. It is far from clear to refer to "this Statute; applicable treaties and the principles and rules of general international law" (Art. 33 a), b)), if, on the other hand, the discussion on the subject matter jurisdiction demonstrates that the number of universally recognized international criminal law norms is very limited. Still less convincing is the reference to "... any rule of national law ... to the extent applicable" (Art. 33 c)): the very issue is to what extent national law is applicable in a given case.⁵⁴ The Alternative Draft displays at least a modicum of awareness of the problem referring in this context to "open questions and elements to be regulated in a General Part".⁵⁵

Regarding the execution of a sentence a situation could arise in which no state is willing to host a sentenced person. Who will host criminals like Karadzcic, leader of the Bosnian Serbs, or the - recently deceased - Columbian drug trafficker Pablo Escobar? For these cases no statute presents a convincing solution. In the long run it may be possible for the ICC to establish its own prison installations on extraterritorial areas; however, even under these circumstances, the affected country would have to consent to incarcerations on its territory.⁵⁶

The reference to national release or mitigation provisions implies the danger of the circumvention of sentences imposed by the ICC. Therefore, limitations derived from international law should be included in the statute. An absolute remission of a sentence in the case of grave human rights violations cannot be permitted.⁵⁷ In any event, decisions granting partial exemption from punishment should, if at all, be taken only by the ICC itself.⁵⁸

Despite the theoretical and technical implications of all these problems one should not overlook that the central issue of any procedural system is of a criminal policy nature: to guarantee a proper balance between the rights of the suspect or the accused and the effectiveness of the prosecution. Fortunately, it seems to be a consensus among the states involved in the debate, that this balance has to be ensured.⁵⁹

15 Regarding the distinction between procedural and other questions within the meaning of Art. 27 II and III UN-Charter see Simma/Brunner to Art. 27, marginal notes 11ff., in: Simma (ed.): Charta der Vereinten Nationen, Kommentar, München 1991. Resolutions based on ch. VII, therefore, are not procedural questions within the meaning of Art. 27 II but always require the qualified majority of Art. 27 III UN-Charter (ibid., marginal note 13). On the other hand, one can consider the establishment of a subsidiary organ in principle as a procedural decision, but Art. 29 only gives organisational and not substantive competence (Hilf to Art. 29, marginal note 27 and Bothe to Art. 38, marginal note 39 in: Simma, supra). Only ch. VII gives this competence turning, however, the question into "another" question within the meaning of Art. 27 III.

16 These have been the main arguments in favour of the SC model in the case of the former Yugoslavia. See O'Brien, supra note 2 at 643: "... a treaty would be uncertain and slow ..." or Shraga/Zacklin, supra note 2, at 361: " ... would take years." Also R.A. Kolodkin, An ad hoc international tribunal for the prosecution of serious violations of international humanitarian law in the Former Yugoslavia, CLF vol. 5, No. 2-3 (1994), at 381-399, 385ff., 391: "... the establishment ... by means of a Security Council resolution appeared to the majority of analysts to be the sole option that answered both the legal and practical demands of the situation."

17 It is particularly uncertain from where the SC derives the competence to submit acts committed on a state's territory and within its jurisdictional power to an ICC without asking this state to accept this submission by way of a formal act of cession or transfer (see S. Oeter, Kriegsverbrechen in den Konflikten um das Erbe Jugoslawiens. Ein Beitrag zu den Fragen der kollektiven und individuellen Verantwortlichkeit für Verletzungen des Humanitären Völkerrechts, in: ZaöRV 53 (1993), at 2-48, 34ff.; Oellers-Frahm, supra note 2, at 417,418). For additional criticism from a Serbian point of view see D. Cotic, Introduction, CLF vol. 5, No. 2-3 (1994), at 223-236, 233.

18 See Oellers-Frahm, supra note 2, at 417; C. Tomuschat, International criminal prosecution: the precedent of Nürnberg confirmed, CLF vol. 5, No. 2-3 (1994), at 237-247, here 241,242 (also for the establishment on the basis of ch. VII UN Charter). For more details regarding such a duty to prosecute see also K. Ambos, Straflosigkeit von Menschenrechtsverletzungen. Zur "impunidad" in südamerikanischen Staaten aus völkerstrafrechtlicher Sicht (with an English summary), Freiburg/Br. (Beiträge und Materialien aus dem Max-Planck-Institut für ausländisches und internationales Strafrecht), 1996 (forthcoming) 4. chapter, A.

19 Cf. International Criminal Tribunal for the Former Yugoslavia (Appeals Chamber): Decision in Prosecutor vs. Dusko Tadic, October 2, 1995, in 35 I.L.M. 32 (1996), para. 32 ff. (also HRLJ 1995, 437). For a critical analysis with regard to the legal basis see J.E. Alvarez, Nuremberg revisited: The Tadic case, 7 EJIL (1996), 245-264.

20 This certainly requires an amendment of the UN-Charter (Jaenicke, to Art. 7, marginal notes 1f., in: Simma, supra note 12; Schutte, supra note 2, at 447).

21 Report of the Ad-Hoc Committee, supra note 7, par. 15; cf. also Crawford, 1995, supra note 4, at 409, 410.

22 UN-Doc. S/25704, par. 34. This includes the crimes referred to under notes 85-103. One has to keep in mind that the corresponding Art. 2-5 of the Yugoslavia Statute have not created substantive law but only defined the scope of the subject matter jurisdiction of the Tribunal (Tomuschat, supra note 15, at 242,243).

23 So Bassiouni, supra note 1, at 33ff. See also Art. 20 par. 2 ILC-Draft and Art. 20 e Alternative Draft, supra note 9, with annex which seeks to include certain treaty crimes in addition to the four groups of crimes (see notes 88-108).

24 Therefore, there was consensus at the XIV Conference on International Criminal Law that "the competence of such a tribunal should be limited to politically less important international crimes" (O. Triffterer, Die völkerrechtlichen Verbrechen und das staatliche Strafrecht, in: Zeitschrift für Rechtsvergleichung 30 (1989), at 83-128, 123).

25 See para. 2 of the preamble of the ILC Draft: "Emphasizing that such a court is intended to exercise jurisdiction only over the most serious crimes of concern to the international community as a whole;" (emphasis in the original; Report of the ILC, supra note 4, par. 91, at 44).

26 Cf. Report of the ad hoc Committee, supra note 7, par. 54, 91; Crawford, 1995, supra note 4, at 410.

27 Bassiouni, supra note 1, at 19. See also ibid., at 57ff, the commentary to Art. 19 Bassiouni-draft stating correctly that the exclusive original jurisdiction is "the most politically difficult to achieve" (at 59).

28 See Bassiouni, supra note 1, at 61: "This approach creates an inducement for State-Parties to experiment with the Court's jurisdiction and eventually to gain the confidence necessary to rely more frequently on the Court."

29 Cf. Report of the ad hoc Committee, supra note 7, par. 81.

30 See also the appendix II to Art. 20 e) ILC-Draft, including Art. 3 (1) of the Vienna Drug Convention of 1988 (Report of the ILC, supra note 4, par. 91, at 155-157). This provision neither makes a distinction regarding the very different conducts ranging from cultivation to mere possession and trafficking nor regarding the substance - soft or hard drugs -. Furthermore, the existing drug conventions do not contain sufficiently clear norms to be directly applicable (see K. Ambos, Die Drogenkontrolle und ihre Probleme in Kolumbien, Peru und Bolivien - eine kriminologische Untersuchung aus Sicht der Anbauländer, unter besonderer Berücksichtigung der Drogengesetzgebung, Freiburg/Br. 1993, at 128). Submitting drug offences to the jurisdiction of an ICC would lead not only to a devaluation of the concept of crime but also to an immediate overburdening of the ICC (cf. Crawford, 1994, supra note 4, at 146 and Bassiouni, in: the same, supra note 1, at 98, 99).

31 The 24 "crimes" mentioned in the Bassiouni-draft are based on 316 international instruments (Bassiouni, supra note 1, at 40). Regarding a necessary distinction between international crimes in a more limited and in a broader sense in this context see also Triffterer, supra note 21, at 103, 112 (criticizing the lack of differentiation in the Bassiouni draft of 1980).

32 See references in note 15.

33 See Crawford, 1994, supra note 4, at 143.

34 However, this creates other problems as the number and the content of international crimes unanimously recognized internationally is highly debated. Therefore, the "Working Group" of the ILC was of the opinion that "the possible controversies over the identity and content of crimes under general international law warranted more cautious treatment than that given to treaty-based crimes ..." (Crawford, 1994, supra note 4, at 145).

35 The inclusion of the "crime" of "aggression", though, seems to be problematic. The dispute about the definition of aggression has impeded the work of the ILC for more than 20 years. As the corresponding GA-resolution does not clarify this point either, the ILC-draft determines that a complaint on the basis of aggression requires a constitutive SC resolution (Art. 23 par. 2 i.V.m. 20 par. 1 (b); see also Crawford, 1994, supra note 4, at 147; Graefrath, supra note 2, at 305ff. and infra notes 72, 100-102.

36 See for example the list to Art. 20 e) of the ILC Draft referring to 14 treaties (Report of the ILC, supra note 4, par. 91, at 147-161).

37 Report of the ILC, supra note 4, par. 91, at 44.

38 Cf. Art. 31 Vienna Convention on the Law of Treaties (UN Doc. A/Conf. 39/11/add.2, 1971, at 287).

39 Report of the ad hoc Committee, supra note 7, par. 29-37.

40 On these crimes see infra notes 88-108.

41 Report of the ILC, supra note 4, par. 91, at 44; see also Report of the ad hoc Committee, supra note7, par. 42.

42 Report of the ad hoc Committee, supra note 7, par.45.

43 Crawford, 1995, supra note 4, at 415.

44 See generally the controversial debate in the ad hoc Committee (Report, supra note 7, par. 128-194).

45 See Art. 25 par. 4 in conjunction with Art. 23 ILC-Draft; similarly the Alternative Draft, supra note 9. For a critical view see Graefrath, supra note 2, at 307ff.

46 Cf. Crawford, 1995, supra note 4, at 413; Report of the ad hoc Committee, supra note7, par.120.

47 See recently the discussion in the ad hoc Committee (Report, supra note 7, par.71, 120-126)

48 Art. 37 par. 4 Alternative Draft, supra note9. Cf. Report of the ad hoc Committee, supra note 7, par. 168.

49 Art. 37 par. 2 ILC-Draft admits a trial in absentia only as an exception [(a) "for reasons of security or the ill-health", (b) "accused is continuing to disrupt the trial", (c) "has escaped]. Art. 37 par. 2 Alternative Draft, supra note 9, is more restrictive, admitting a trial in absentia only if "(a) the accused expressly waives the right to be present; (b) ... is continuing to disrupt the trial; (c) after the commencement of the trial ... has escaped from lawful custody ... or has violated the terms of bail."

50 According to the UN Human Rights Committee, Art. 14 (3) (d) International Covenant for Civil and Political Rights (ICCPR) does not prohibit a trial in absentia if everything was done to inform and notify the accused (see Mbenge v. Zaire, No. 16/1977, Selected Decisions of the Human Rights Committee under The Optional Protocol, vol. 2, UN-Doc. CCPR/C/OP/2, at 76ff.; see also the European Court of Human Rights in Colozza v. Italy, 89 Eur. Ct. H.R., ser. A, 1985). See also Report of the ad hoc Committee, supra note 7, par. 164-167.

51 See the differentiation in: Walter Perron, Rechtsvergleichender Querschnitt, the same (ed.), Die Beweisaufnahme im Strafverfahrensrechts des Auslandes, Freiburg (Beiträge und Materialien aus dem Max-Planck-Institut für ausländisches und internationales Strafrecht) 1995, at 560-567.

52 This is evident if, as in the Yugoslavian case, the affected state has transformed the applicable international treaties in its national law and has provided for corresponding sentencing guidelines. However, it is unfortunate that the statute does not refer to these sentencing guidelines but only to the general practice (Oellers-Frahm, supra note 2, at 427).

53 The Alternative Draft, supra note 9, at least provides for a minimum sentence of not less than one year and an appropiate fine. See also Report of the ad hoc Committee, supra note 7, par. 187-190. However, the prevailing doctrine considers that the nulla poena principle only requires the establishment of a general penalty; a concrete indication of type and length or amount is not needed (cf. Triffterer, Bestandsaufnahme zum Völkerstrafrecht, in: Hankel/Stuby, supra note 2, at 169-269, here 218, 219).

54 For the critical comments of states cf. Report of the ad hoc Committee, supra note 7, par. 52, 53.

55 Alternative Draft, supra note 9, commentary to Art. 33. These elements have been put into concrete terms at the beginning of 1996 (supra note 10).

56 This is the tendency of Bassiouni's draft as stated in the commentary to Art. 28: "The Tribunal may also place the convicted persons in its own detention facilities, which could be established by the Convention in accordance with a host-state agreement between the Tribunal and the State wherein the detention facility will be established" (Bassiouni, supra note 1, at 79).

57 See Ambos, supra note 15, 4. Chapter, B. I.

58 Art. 60 of the Alternative Draft, supra note 9.

59 Report of the ad hoc Committee, supra note 7, par. 132.

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