The International Criminal Court and Social Engineering
Professor Richard Wilkins
The Statute for the Creation of the International Criminal Court (or "I.C.C. Statute") was adopted at a high-level diplomatic conference in Rome, Italy, in July 1998. In June 2000, documents establishing rules of procedure and definitions of criminal conduct were finalized by a Preparatory Commission in New York.2 These events culminate a decades-long effort to establish a permanent judicial body to prosecute international crimes, and represent a dynamic shift in international politics.2 The I.C.C. statute purports to create a judicial mechanism with jurisdiction potentially reaching every individual on the face of the earth, whether or not that individual resides in (or is a citizen of) a country that has ratified the statute. The Statute, furthermore, is now seen by many pressure groups as perhaps the principal means of enforcing the multitude of human rights norms generated by the United Nations conference system.
As currently structured, the I.C.C. Statute proposes to transfer a vast amount of decision making authority from previously sovereign nations to an international court that will be remote from (and unable to be controlled by) the diverse cultures and peoples of the world. It does so by means of language which is vague and, therefore, capable of expansion to conduct well beyond that which (at present) is considered to be within the customary reach of genocide, war crimes and crimes against humanity.
The Court's structure, finally, will permit pressure groups to obtain ready influence over prosecutorial functions. The net result is that the I.C.C. has the potential to become — not a Court dealing primarily with "the most serious crimes of international concern"3 — but a tool for radical social engineering.4
Further, it is proposed that the I.C.C. will have jurisdiction even over non-ratifying countries. Accordingly, the Statute asserts jurisdiction over a large potential class of defendants residing in non-signatory states. So long as the "crime" is committed in a signatory state, non-ratification of the I.C.C. Statute by the state in which a purported criminal defendant resides will not defeat jurisdiction. As a result, a decision in one state to engage in conduct that has an impact in a second, ratifying state will subject the conduct to prosecution _ even if the first state has not ratified the I.C.C. Statute. This is contrary to well-established principles of international law.
Reason and prudence dictate against disregarding the established boundaries of international law. The International Criminal Court's expansive jurisdiction seriously endangers the right of the people residing in nation-states throughout the world to govern and order their own affairs and to respect and/or alter their own cultural and religious traditions.
This threat to national self-determination should not be dismissed lightly.
The Statute, according to its terms, is designed to be "complementary to national criminal jurisdictions."5 As such, the Court is designed to take jurisdiction only when a nation is "unwilling or unable" to act.6 This language appears to protect national sovereignty, and is invoked by proponents of the Court to calm concerns that the Court might seriously intrude upon questions (such as culture and religious practice) that, according to the U.N. Charter, are "within the domestic jurisdiction" of a nation-state.7 But, while it sounds reassuring, unfortunately the notion of "complementarity" is a legal shadow. Rather than protecting national sovereignty and local democratic self-determination, the concept of "comple-mentarity" operates much like an international supremacy clause.
Indeed, if national law diverges in any important detail from the law established by the I.C.C. Statute, that nation will in effect invite the I.C.C. to step in and take action. Notably, a booklet issued by The Women's Caucus for Gender Justice asserts that "ratification of the treaty creating the Court will necessitate in many cases that national laws be in conformity with the I.C.C. Statute."8 The Caucus states that implementation of the I.C.C. Statute will provide an opportunity for groups "all over the world to initiate and consolidate law reforms . . .".9 Indeed, the Gender Caucus asserts that "[i]t is this aspect of the Court _ the possibility of national law reform _ which may present the most far-reaching potential" for change "in the long run".10 According to the Caucus, "States parties will be required to review their domestic criminal laws and fill in the gaps to ensure that the crimes enumerated in the I.C.C. Statute are also prohibited domestically."11
In other words, national law must mirror the terms and conditions of the I.C.C. Statute, and ultimately the judicial decisions of the I.C.C. itself. Otherwise, a state will find its law being circumvented by the Court, which will take jurisdiction because that state will be found "unable" to act. This is the process by which "complementarity", instead of a shield, becomes a sword.
Social Policy and "Criminal" Acts
The language of the I.C.C. Statute is sweeping. Although the Statute purports to reach only serious crimes, the potential breadth of the crimes set out in Articles 6, 7 and 8 of the Statute is limited largely by the imaginations of international lawyers and the judicial restraint (or lack of it) that will be exhibited by the judges on the Court. The crime of genocide, for example, includes not policies dealing with marriage and dissolution of marriage. Laws and religious practices that promote marital union, for example, arguably impose "great suffering" and "serious injury" to the mental health of a spouse who wishes to dissolve the relationship, thus constituting "inhumane acts." Similar arguments, centred upon the claim that autonomy is a "fundamental right," could be made under the rubric of the crime of persecution.
In March of this year, The Women's Caucus for Gender Justice issued two documents: (1) a booklet which explains how the I.C.C. can be used to enforce the Beijing Platform for Action19 and (2) recommendations and commentary on crimes against humanity.20 These documents demonstrate that _ whatever its "plain language"_ the I.C.C. Statute can be used to restructure family life and religious practice.
During the past decade, the United Nations System has negotiated numerous "platforms," "agendas" and "declarations" setting out aspirational goals for Member States in virtually every area of human life. The Women's Caucus for Gender Justice unquestionably intends to use the International Criminal Court to enforce these (previously)"soft law" norms. As the Caucus' March 2000 booklet explains, "the creation of the world's first permanent criminal court" provides "an opportunity to codify as international law . . . many of the strategic objectives outlined and committed to by Governments in [such documents as the Beijing] Platform for Action".21 The I.C.C., in short, could transform previously unenforceable (and often broadly worded) norms into indictable criminal conduct. In the Caucus' view, the I.C.C. is not merely (or even primarily) a court to deal with the "most serious crimes of international concern". Rather, the I.C.C. is an institution with which to achieve "many of the commitments in the [Beijing] Platform for Action as well as a mechanism through which to achieve others".22
Judicial action that refashions social norms has become quite commonplace in the United States, Canada, and the European Union. The impact of such judicial tinkering is now becoming clear in the decaying family and social structures in these parts of the world. The I.C.C. could well become the mechanism by which the Western innovation of judicially (rather than legislatively) crafted social policy _ and its accompanying consequences _ are exported to the rest of the world.
One of the most important characteristics of a sound judicial structure is judicial impartiality. In Rome, however, certain groups made it quite clear that they intended to use the court to enforce and further their particular (and debatable) social agendas. Perhaps the largest interest lobby at the conference espoused the vague concept of "gender sensitivity" as a litmus test for judicial selection. The Statute mandates that "States Parties shall . . . take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children."23 One can only wonder how judges with "legal expertise" regarding "violence against women and children" will receive arguments asserting that various cultural and religious practices violate international humanitarian law.
Further, the prosecutorial structure established by the I.C.C. Statute raises serious concerns. As adopted, the I.C.C. Statute grants the prosecutor "proprio motu" powers;24 that is, the prosecutor has the power (subject only to uncertain review by a panel of I.C.C. judges) to initiate an investigation and prosecution completely on his own authority and without oversight or control by any national or international power.25 While this provision was purportedly designed to prevent the prosecutor from being swayed by "political" concerns, experience in the United States suggests that there is more to fear from a politically unaccountable prosecutor than from a politically accountable one.
Following the resignation of President Richard Nixon, the United States embarked upon a well-intentioned experiment with proprio motu prosecutors. Fearing that prosecutors under the control of the President would be unable to prosecute effectively Executive Branch wrongdoers, the U.S. Congress passed the Ethics in Government Act of 1978, which authorised the appointment of "independent prosecutors." But, rather than demonstrating a penchant for apolitical and unsullied prosecutions, in some cases the independent prosecutor's office demonstrated just the contrary. An "independent" prosecutor may not be answerable to established political organs, but such a prosecutor is (in fact) readily swayed by general political currents, popular sentiments, and personal political predilection. Accordingly, America's experiment with independent prosecutors has now been abandoned.
In conformity with this experience, the United States (and also several other countries) argued that the I.C.C. prosecutor should be permitted to proceed only upon referral of a case by a nation/state or an appropriate U.N. body.26 That proposal was rejected and the I.C.C. Statute, as drafted, confers expansive investigational and prosecutorial authority on prosecutors.
This broad prosecutorial power may — rather than being immune to political considerations — be particularly subject to the most corrosive kinds of political influence. Article 44 of the Statute allows the prosecutor to accept "any . . . offer" of "gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organisations".27 "Gratis personnel" are personnel paid for by third parties. But, while their salary is paid by a third party, such personnel are nevertheless performing the "work . . . of the organs of the Court".28 One can expect that many of these "gratis personnel" will be supplied by well-funded international N.G.O.s who are hostile to religion and traditional values.29 An independent prosecutor's office free from any real governmental control is dangerous enough. An independent prosecutor's office staffed by N.G.O.s with ideological axes to grind is positively frightening.
Conclusion: Sovereignty at the Crossroads
As outlined above, the I.C.C. will transfer a vast amount of decision making power to judges who will be guided by vague language and driven by politically unaccountable prosecutors. This intrusion upon national sovereignty is unprecedented.
Respect for national sovereignty is a bedrock principle of the U.N. Charter. Article 2, paragraph 7 of that Charter provides:
"Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter . . .".
We now stand at the historic point where an international organ will have the inherent power to intervene in domestic social policy. Those who applaud this development expect the nations of the world to willingly surrender important aspects of national sovereignty in the name of "human rights". This is a dangerous course. National sovereignty, rather than inimical to "human rights," is fundamental to the preservation of those rights.
Key among fundamental human rights are the rights to democratic self-governance and self-determination, the right to maintain diverse cultural and religious practices, and even the right, if people so choose, to "vote their conscience" and to establish governments based on religious principles. These rights are set forth in numerous U.N. pronouncements, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights:
"All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development".30
"Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. . . . The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections".31
"Everyone has the right to freedom of thought, conscience and religion; this right includes . . . freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance".32
These human rights and individual freedoms are best served if countries preserve their sovereignty and the right to govern their own domestic affairs. An autonomous international court will not be responsive to the culturally diverse peoples of the world. Moreover, governance by judges is inherently undemocratic. The power to determine the contours of domestic policies must be kept close to home _ close to the people being governed. Many "human rights" issues are, fundamentally, political questions that should be answered by the political processes within each country. The often-difficult debates surrounding many newly established and/or emerging "human rights"(such as family rights, abortion and same-sex marriage) should not be resolved by giving an international court the power to declare that its ideological opponents are "criminals."
The United Nations was not designed to possess, let alone exercise, sovereign powers. Its Charter does not give it the power to "enforce" human rights ideas upon sovereign nations. Rather, the Charter calls upon the United Nations merely to "promot[e] and encourag[e] respect for human rights".33 It would be a tragic irony if, in the name of "human rights", the nations of the world give potentially despotic power to a court that will be remote from the individual people of the world, but that will have the power to prosecute and punish them for "social crimes."
1. After a series of meetings spanning two years, the Preparatory Commission for the International Criminal Court completed work on the Rules of Procedure and Evidence (PCNICC/2000/L.2/Add.1) and the Elements of Crimes (PCNICC/2000/L.2/Add.2) on 30 June 2000.
2. The I.C.C., as conceived, is not formally a part of the United Nations system, although it will have a close financial relationship with the United Nations.
3. I.C.C. Statute, Article 1.
4. I.C.C. Statute, Article 12(2).
5. I.C.C. Statute, Article 1.
6. I.C.C. Statute, Article 17(1)(a).
7. U.N. Charter, Article 2.
8. Women's Caucus for Gender Justice, "The International Criminal Court: The Beijing Platform in Action (Putting The I.C.C. On The Beijing +5 Agenda)", at page 8.
9. Ibid.. at page 9.
10. Ibid.. at page 22.
11. Ibid.. at page 25.
12. I.C.C. Statute, Article 6(b).
13. I.C.C. Statute, Article 1. 14. I.C.C. Statute, Article 7(1).
15. Report of the Working Group on Elements of Crimes.
16. See, for example, M. Frug, "Postmodern Legal Feminism", at page 134.
17. Dianne Post, "Why Marriage Should Be Abolished", 18 Women's Rts. L. Rep. 283 (1997).
18. Article 7's "crimes against humanity" are not limited to actions of a state. On the contrary, individuals who violate any of Article 7's proscriptions are subject to prosecution so long as their actions are pursuant to an "organisational policy".
19. Women's Caucus for Gender Justice, supra, footnote 8.
20. Women's Caucus for Gender Justice, "Recommendations and Commentary to the Elements of Crimes, Submitted to the Preparatory Commission for the International Criminal Court", March 13-20, 2000.
21. Ibid., at page 6.
22. Ibid., at page 8 (emphasis added).
23. I.C.C. Statute, Article 36(8)(b).
24. "Of his own volition".
25. I.C.C. Statute, Article 15(1).
26. Marcus R. Mumford, "Building Upon A Foundation of Sand: A Commentary on the International Criminal Court Treaty Conference", 8 J. Int'l. L. & Prac. 151, at page 179 (1999).
27. I.C.C. Statute, Article 44(4).
29. See generally Richard G. Wilkins, "Bias, Error and Duplicity: The U.N. and Domestic Law", The World & I, Dec. 1996, at pages 287-305.
30. International Covenant on Civil and Political Rights, Article 1, paragraph 1; International Covenant on Economic, Social and Cultural Rights, Article 1, paragraph 1.
31. Universal Declaration of Human Rights, Article 21, paragraphs 1 and 3.
32. Universal Declaration of Human Rights, Article 18.
33. United Nations Charter, Article 1, paragraph 3.
National Observer No. 48 - Autumn 2001