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Limits of Law in Ending Impunity for State Crime: Time to Re-frame the International Criminal Court's Mandate?
Abstract
Adopting a definition of state crime as deviance, rather than international crime committed by states, this article critically evaluates the limits of law and the efficacy of the Rome Statute in delivering the International Criminal Court's mandate. It suggests that the replication of domestic criminal justice responses – crime defined by the state, an emphasis on individual culpability, reliance on deterrence and the rule of law – is unsuitable for conceiving and tackling state criminality at a supranational level. States may evade the jurisdiction of the Court and exploit delays caused by the Courts' formal rules of procedure and evidence. They may also depend on the non-cooperation of state parties to bring perpetrators to justice and the lack of political unity within the United Nations Security Council. With increasing resort to domestic courts and national agencies to close the impunity gap, it is timely to revisit the Court's mandate, to clarify its function as a supranational regulator in respect of a limited range of offences, rather than the decisive method of ending impunity for state crime that some have claimed and for which others had hoped.
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Not all international crime is committed by state officials, e.g. transnational crimes committed by criminal gangs such as people-trafficking, hence the terminology used here: international crime committed by states.
It may be argued that reference to “civil, administrative or disciplinary proceedings” falls outside of the criminal jurisdiction of the ICC. However, the extent to which state violence is referred to in different fora may be taken into consideration by the ICC under the doctrine of complementarity. This is discussed further in Part II.
The Rome Statute of the ICC was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 and entered into force on 1 July 2002. It was most recently amended on the 29 November 2010 in consequence of the Review Conference of the Rome Statute in 2010, Kampala, Uganda.
Complementarity provides that nation states must primarily be responsible for investigating allegations of criminality conducted by their own agents. Under the Rome Statute article 17, a case is inadmissible before the ICC if national authorities are already dealing with the same case and are willing and able to carry out fair proceedings, have investigated and decided not to prosecute or the same case has been prosecuted at the domestic level. However, when considering whether the case is admissible under the doctrine of complementarity, the ICC may also gather information regarding related civil and disciplinary proceedings that have a bearing on the case; see further Part II.
The ICC's jurisdiction regarding the crime of aggression came into force on 17 July 2018 (ICC Assembly of State Parties, Resolution ICC-ASP/16/Res.5, adopted at the 13th Plenary Meeting of the Sixteenth Session, 14 December 2017).
Resolution ICC-ASP/16/Res.5, ibid, paragraph 2: “Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.”
Although the UK is a signatory to the Rome Statute, neither the US nor Iraq are state parties to the ICC. In 2006, the Office of the Prosecutor concluded, in declining to seek authorisation to initiate an investigation into Iraq, that, “The available information suggests that most of the military activities were carried out by non-States Parties. As one example of available information, the reports of Coalition parties converged in indicating that 94–96% of air sorties were carried out by non-States Parties” (ICC 2006: 6).
Transformative justice may be defined as wide-reaching or radical change throughout society (see Daly 2002; Evans 2016).
The Nuremberg Tribunal rejected the submission that “. . . where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state” and ruled that “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced . . . The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings” France et al v. Goering et al, 22 IMT 411, 466.
However TRCs have also been criticised for granting amnesty and contributing to impunity; see Mamdani (2002). For the problem that TRCs and conditional amnesties presents to the ICC's mandate to end impunity, see Holtermann (2010).
cf. Balint (2014), who has argued that a deeper integration between restorative and retributive approaches to accountability for state crime is needed for long-term institutional transformation.
For a gendered critique of the ICC's reparations mandate, see Durbach and Chappell (2014).
Where a situation has been referred to or is under investigation by the ICC, the actions of corporate agents may be considered in respect to individual liability under article 25(3)(c) (aiding and abetting crime) or article 25(d)(ii) (contributing to the commission of crime), or superior liability under article 28(b). See De Leeuw (2016) and Graziano and Mei (2017) for an analysis of the effectiveness of the provisions.
When the Rome Statute was first negotiated in 1998, few states held corporations directly liable under domestic criminal law and therefore, according to Scheffler (2016), the doctrine of complementarity would have been frustrated. Moreover, a proposal to pursue criminal charges against corporate legal persons before the ICC would have risked undermining the ratification of the entire treaty in 1998 (Scheffler 2016).
The US, China and Russia.
The Bush administration's campaign against the ICC included: (i) unsigning the Rome Treaty; (ii) the creation of over 100 Bilateral Immunity Agreements (BIA) with state parties in breach of the Rome Statute, which preclude ICC prosecution of American citizens implicated in crimes committed on the territory of state parties; (iii) obtaining immunity from prosecution before the ICJ for non-state parties involved in UN operations through UNSC Resolutions; (iv) the enactment of the American Servicemembers' Protection Act 2002, which prohibited military aid to ICC state parties except major US allies, refused military assistance to countries refusing to sign BIA and permitted the President to use “all means necessary” to free US and allied personnel in ICC custody. See Keppler (2009).
The Prosecutor lodged a Request in November 2017 to the Pre-Trial Chamber of the ICC to authorise an investigation into the situation in Afghanistan, stating: “Thus, since the alleged crimes identified in this Request have been committed on the territory of a State Party to the Rome Statute, the Court has territorial jurisdiction over these alleged crimes, regardless of whether the alleged suspects are nationals of a State Party. Note that the deliberate formulation in article 12 contrasts with paragraph 5 of article 15 bis with respect to the crime of aggression, which expressly excludes ICC jurisdiction with respect to a national of a state that is not a party to the Rome Statute” (ICC, 2017a: 44).
The preliminary examination of alleged war crimes committed by UK nationals in Iraq from 2003 to 2008 was initially terminated on 9 February 2006 (ICC, 2006) but re-opened on 13 May 2014 on the basis of a “new communication” dated 10 January 2014 (ICC, 2014c) from the European Center for Constitutional and Human Rights and the now impugned UK Public Interest Lawyers (see Bowcott, 2017a; Bowcott 2017b). Though Iraq is a not a state party to the Rome Statute, the ICC has jurisdiction over alleged crimes committed on the territory of Iraq by nationals of State Parties, i.e. the UK, under article 12(2)(b). The preliminary investigation into Iraq is now in the third phase of the preliminary investigation according to the ICC website.
Under the Rome Statute article 15(3), the Prosecutor must seek the authorisation of the Pre-Trial Chamber to open an investigation where the Prosecutor initiated the preliminary examination and there has been no initial referral from the UNSC.
Rome Statute, article 1.
The International Military Tribunal at Nuremberg (1945), the International Military Tribunal for the Far East (1946), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in the 1990s all had primary jurisdiction.
This is the third phase of a preliminary examination, having determined that there is a reasonable basis to believe that the alleged offending falls within the jurisdiction of the court (ICC 2013). Under the Rome Statute article 17, a case is inadmissible before the ICC if national authorities are already dealing with the same case and are willing and able to carry out fair proceedings, have already investigated and decided not to prosecute or the same case has already been prosecuted at the domestic level. Under article 20 a person cannot be prosecuted by the ICC for conduct that has already formed the basis of a domestic prosecution. Note the emphasis on conduct – there is no requirement for the domestic law or the domestic prosecution to mirror the elements of the international crimes committed by states contained in the Rome Statute (Seils 2016).
If the Prosecutor determines the case is admissible under the doctrine of complementarity (see ibid), the fourth and last phase of a preliminary examination considers whether “taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of the justice”, in accordance with article 53(1)(c). The ICC takes the view that the exercise of discretion under article 53(1)(c) is exceptional and that there is a presumption in favour of investigation (ICC 2007).
The IHAT was set up in 2010 and was suceeded by the Service Policy Legacy Investigations (SPLI) in 2017. In respect to the preliminary examination into alleged war crimes committed by UK soldiers in Iraq, the ICC is currently in the third phase of the preliminary examination: considering whether the admissibility criteria to commence an investigation under article 17(1) is met with a view to both complementarity and gravity (ICC, 2017b: 172–203).
The UK Government is reported to have said: “We have a legal responsibility to investigate credible allegations of wrongdoing by UK forces, and that is what we are already doing as part of service police legacy investigations, which is reviewing the relatively small number of remaining cases after the closure of IHAT, and through Operation Northmoor. . . . We are confident that our existing efforts to investigate allegations preclude the need for any investigation by the ICC” (Bowcott, 2017b: online).
Contrast the transference of prosecutorial authority in the event of state inaction with Bosco's rather stronger assertion that the ICC represents “a remarkable transfer of authority from sovereign states to an international institution” (Bosco 2014: 2).
Emphasis in original.
Seils (2016: 3) identifies “four reasons for the complementary system: 1) it protects the accused if they have been prosecuted before national courts; 2) it respects national sovereignty in the exercise of criminal jurisdiction; 3) it might promote greater efficiency because the ICC cannot deal with all cases of serious crimes; and 4) it puts the onus on states to do their duty under international and national law to investigate and prosecute alleged serious crimes (that is, it is not just a matter of efficiency but a matter of law, policy, and morality).”
On disillusionment with the ICC see also de Hoon (2017).