Peace, Justice, and Human Rights

The ICC, Jurisdiction, and Consent

Today we made our first trip to the Peace Palace, the home of the International Court of Justice, Permanent Court of Arbitration, Peace Palace Library, and Hague Academy of International Law.  The Palace itself, as seen in the first picture above, is a a magnificent structure that was built and donated by Andrew Carnegie in the early twentieth century.  We did not, however, go into the Palace, because the purpose of today’s visit was to become acquainted with Peace Palace Library, which houses over a million works on international law.  Compared to the Palace, the Library, as seen in the second picture, was a bit of a let down.  It is composed of a reading room where a few volumes are immediately available.  The vast majority of the volumes, however, are stored elsewhere and only the librarians have direct access to them.  To read them, one must login to a computer with an account given when she first enters, search for a book in their database, and once it has been found, click the “retrieve” button.  It takes about thirty to forty-five minutes for a book to be taken to the reading room.  Although the system is not very efficient, the librarians were incredibly helpful and the collection was excellent.  Upon entering the library, I immediately spotted many books that caught my eye such as Governance Without a State? and The Right to Health in International Law.

I already had a good idea of what topic I wanted to research going into the Peace Palace Library.  My father, an attorney in the US, and I had an argument last week about the jurisdiction of the International Criminal Court (ICC).  He was arguing that the Court has no jurisdiction over nationals of states that have not ratified the Rome Statute and are not part of the UN.  I was defending the Statute, which allows the court to have jurisdiction over a person whose nation has not ratified the Statue or who committed the crime in a country who has not ratified the Statute.  This can only happen when the UN Security Council refers the case to the prosecutor of the ICC.  The issue comes down to consent; does the ICC have jurisdiction over John Smith even though Smith’s country did not ratify, or consent to, the Statue?  With this question in mind, I began searching with keywords such as “Rome Statute” and “jurisdiction.”  I came across an article by Mitsue Inazumi entitled “The Meaning of the State Consent Precondition in Article 12(2) of the Statute of the International Criminal Court: a Theoretical Analysis of the Source of International Criminal Jurisdiction.”  Article 12 of the Statute pertains to jurisdiction over nations who give consent to the ICC’s jurisdiction.  Although the article does not focus on the question I had in mind, it still sheds light on and addresses the issue of prosecuting individuals of non-consenting nations.  For example, the author discusses a few theories of jurisdiction related to the ICC, such as conferred-jurisdiction theory and inherent-jurisdiction theory.  Under the conferred-jurisdiction view, an international court has jurisdiction over a person because that person’s nation consented to the court’s jurisdiction.  On the other hand, under the inherent-jurisdiction view, an international court derives its jurisdiction independently of consent of the person’s nation.  The article addresses many other topics such as automatic jurisdiction, the state-centered approach to the ICC, the strong-ICC approach to the ICC, universal jurisdiction, the Rome Conference, and the nature of the ICC’s jurisdiction.  This was an important article to read, because any proponent of the ICC must address the jurisdiction the Court has over non-consenting individuals, as consent is considered an integral component of jurisdiction.

Later this week, Dr. Arthur Eyffinger will be teaching one of our classes.  He is an expert on the international peace and justice traditions of The Hague and has published many books related to this topic.  As part of our assignment, we are to ask a question based on the books or articles we read today in the Peace Palace Library.  As he is a historian and not a philosopher of law, I will be asking Dr. Eyffinger how the ICC’s jurisdiction over individuals from non-consenting nations fits with the history of international justice.  Was it inevitable that the pursuit of international justice would take us to an international criminal court that has jurisdiction over individuals who do not consent to its jurisdiction?  In other words, was it the next step?  Furthermore, how would historical figures in this field of academia, such as Grotius and Ausser, view the ICC and its jurisdiction?  This question falls under the general topic of philosophy of law as it has to do with basic, yet core principles of jurisdiction.  More particularly, this topic has to do with the complex issue of the jurisdiction of international criminal courts.  In addition, I would like to ask him about his personal feelings of the ICC, how he got into this field, and what is like to be a historian of international law.

Works Cited

http://www.peacepalacelibrary.nl/

Inazumi, Mitsue. “The Meaning of the State Consent Precondition in Article 12(2) of the Rome Statute of the International Criminal Court: a Theoretical Analysis of the Source of International Criminal Jurisdiction.” The Netherlands International Law Review. 49: 159-193.

Captivated

The past week of our course has been filled with some fascinating philosophy of law and international law issues.  The most important thing I learned is that the Rome Conference in 1998 was a Groatian Moment, a momentous shift in international politics.  This point is made by Leila Sadat and S. Carden in the article, “The New International Criminal Court: An Uneasy Revolution.”  The Conference ended with the signing of the Rome Statue, which is the treaty that established the International Criminal Court (ICC).  Sadat and Carden argue that this was a completely new way in which international law was made, because the “Rome conference was in fact a quasi-legislative process by which the international community ‘legislated’ by a non-unanimous vote, the political legitimacy of the norms rest not on any classic theory of contract between absolute sovereigns (treaty making) but on some other grounds” (391).  To put it more simply, international law before Rome was based upon a “classic theory” of contracts, in which parties agree to being held accountable under a law by signing a treaty.  On the other hand, the ICC can prosecute individuals from nations that did not sign the Rome Statute, or in other words, it can prosecute individuals from countries that did not consent to being bound by its law.  This can only happen, however, when a case is referred to the prosecutor by the U.N. Security Council.  Regardless of the Security Council, the Rome Conference was a Groatian Moment, because it was a shift from international law being created in a contract manner (treaty making) to international law being created in a legislative manner (like criminal law).

The most interesting thing I learned this past week was in Eric Blumenson’s article, “The Challenge of a Global Standard of Justice.”  It was not a particular fact, but rather an issue.  Fast forward seven years.  The Rome Statue had entered force, and the ICC has just indicted Joseph Kony of Uganda for the use of child soldiers in his army, the Lord’s Resistance Army (LRA).  Some time after the indictment is released, Kony remains free and the LRA begins negotiating for peace with the Ugandan government but they have a non-negotiable term: the ICC is to halt its prosecution of Kony.  The ICC did not stop its prosecution, and peace with the LRA remains elusive.  A large number of Ugandans argue that the ICC should stop its prosecution in favor of peace, reconciliation, and amnesty for the LRA soldiers and leaders.  This method of resolving fighting is an Ugandan tradition and is known as “mato oput.”  There are two issues at play in this situation.  First, what should the ICC pick: peace or justice?  If they continue their prosecution in the name of justice, the LRA will not accept peace, but if the ICC ends their prosecution the LRA would be much more inclined to end the fighting.  Second, are amnesty and forgiveness for committers of war crimes, genocide, and crimes against humanity an acceptable form of justice?  The ICC clearly does not think so as it jails the perpetrators of these crimes, but other peoples, particularly those of non-Western cultures, might find other means of justice more appealing.  These are two of the most interesting and complex issues I have considered in international law, or more generally in philosophy of law, and they are critical issues the ICC has been faced with in its infancy that will determine its success in the future.

With this last issue in mind, one wonders if jailing perpetrators of crimes is the most effective method of justice, which reveals some deep legal theory questions.  The most interesting question to me is whether amnesty and forgiveness as justice, like mato oput in Uganda, are more desirable than the Western penal tradition.  Regardless of my reflections, I am very anxious to leave for the Netherlands.  After learning of these intriguing issues that face the ICC, I’m incredibly excited to be in the Hague next friday and to experience the court firsthand.

Works Cited

Blumenson, Eric. “The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court.” Columbia Journal of Transnational Law. 44: 801-874.

Sadat, Leila Nadya, and S. Richard Carden. “The New International Criminal Court: An Uneasy Revolution.” Georgetown Law Journal. 88: 383-459.

Awakened

Last week, my class, Peace, Justice, and Human Rights, began and it is about these broad issues in the context of the International Criminal Court (ICC).  We discussed a multitude and variety of topics in the span of a week to lay the basis for the rest of the course. We learned about philosophical topics such as the difference between positive and negative rights and more practical topics such as how the judges are chosen for International Court of Justice (ICJ).  We each had to read a book by Arthur Eyffinger, an expert on the Hague, international courts, and their history, and I read The Hague: International Centre of Justice and Peace.  The most interesting thing I learned from this book, and so far in this course, is that rape was not considered a crime against humanity until the International Criminal Tribunal for the Former Yugoslavia (ICTY) set a precedent defining it as such.  It is both frustrating and amazing that it was not considered a crime against humanity until relatively recently.  Additionally, the most important thing I learned from this course so far was from Eyffinger’s book.  It was not a particular fact, but more of an appreciation of the historical struggle for an agreed upon definition of human rights, for the creation of international courts and organizations, and particularly for the creation of an international criminal court.

When deciding on an adjective to describe the first week of class and to be the name of this post, I almost decided upon “intense.”  We have watched movies on both the Rwandan and Bosnian Genocides and the experience could not be described any other way. I felt anger, despair, horror, and disgust both during and after these movies.  I decided, however, upon “awakening,” because in watching those movies and in reading about atrocities, I began to feel a drive in me that I had never experienced before.  I felt driven to learn more about these genocides and, more so, about the courts that try their originators, to go to the Peace Palace library and read judges’ decisions to better understand the legal grounds for prosecuting these individuals, to sit in on trials to understand the proceedings, and, most importantly, to assist international criminal tribunals and courts.

Learning about Rwanda and Bosnia awoken in me a potential to learn, understand, and add to the international criminal law.  I chose the picture below, because it signifies that I have just begun my journey learning about the different facets of the ICC and there is much more ahead.