The proposed international criminal court: Its establishment and its relationship with the united nations

Report of the Preparatory Committee on the Establishment of an International Criminal Court: Vol. I, Proceedings of the Preparatory Committee during March–April and August 1996, U.N. GAOR, 51st Sess., Supp. No. 22, vol. I, at 8–10, U.N. Doc. A/51/22 (1996) [hereinafter1996 Report of Preparatory Committee]; see also id.: Vol. II, Compilation of Proposals (same document number) [hereinafterCompilation]. The Preparatory Committee, which is paving the way for a Diplomatic Conference to be held in Rome, June–July 1998, began on the basis of the International Law Commission’s Draft Statute for an International Criminal Court,Report of the International Law Commission on the Work of Its Forty-sixth Session, 2 May–22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 43, U.N. Doc. A/49/10 (1994) [hereinafter ILC Draft], butCompilation, supra, contains text that ranges far and wide.

ILC Draft,supra note 1, at 50–51, suggests a single nonrenewable term of nine years. Anyone who has witnessed the unedifying sight of members of the ICJ campaigning for reelection will understand the point.

The ICC should more appropriately be named the International Criminal Tribunal because the Court is the adjudicating or judicial organ of the institution. To refer to the Court as the entire institution and also to the Court as the judicial organ within the institution can create unnecessary confusion. M. Cherif Bassiouni,Observations Concerning the 1997–98 Preparatory Committee’s Work, inThe International Criminal Court, 13 Nouvelles Etudes Pénales 5, 21 (1997) [hereinafterInternational Criminal Court].

ILC Draft,supra note 1, art. 12.

Id. arts. 10, 17.

Id. art. 10, ¶ 2, for example, provides: Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. In particular, they shall not while holding the office of judge be a member of the legislative or executive branches of the Government of a State, or of a body responsible for the investigation or prosecution of crimes.

The states parties to the Convention on the Law of the Sea seem to be grappling with a similar problem in relation to the Tribunal on the Law of the Sea, and some of its judges must have made hard career choices. Remuneration Decisions, in Meeting of States Parties, United Nations Convention on the Law of the Sea, Decisions on Budgetary Matters of the International Tribunal for the Law of the Sea for the Year 1998, U.N. Doc. SPLOS/L.7 (1997), at 5 [hereinafter ITLOS Budgetary Matters].

The United States has raised persuasively the question whether an underresourced prosecutor’s office might not upset delicate and complex state investigations, especially in respect of terrorism and drug offenses. Comments from States, U.N. Doc. A/AC.244/1/Add.2 (1995), at 13–18. The United States draws the conclusion that such offenses should probably be excluded; others might draw a conclusion in favor of more resources.

S.C. Res. 808 (preamble), U.N. SCOR, 48th Year, 1993 Res. & Dec. at 28, U.N. Doc. S/INF/49 (1993) (Former Yugoslavia); S.C. Res. 955 (preamble), U.N. SCOR, 49th Year, 1994 S.C. Res. & Dec. at 15, U.N. Doc. S/INF/50 (1994) (Rwanda). The preambles also speak of putting an end to such crimes and bringing those responsible "to justice."

U.N. Charter art. 108.

Seeinfra section entitled "Financing the Court."

I have in mind the way in which the International Labor Organization ("ILO") and the UN Economic and Social Council went about creating a Fact-Finding and Conciliation Commission for freedom of association matters, outside the ILO treaty structure. An individual commission would be formed as required with the consent of the parties in a particular case. James Nafziger,The International Labor Organization and Social Change: The Fact-Finding and Conciliation Commission on Freedom of Association, 2 N.Y.U. J. Int’l L. & Pol. 1 (1969). The debate on the "constitutionality" of these actions is summarized in Frederic R. Kirgis,International Organizations in Their Legal Setting 303–05 (1977).

ILC Draft,supra note 1, art. 20(e) & annex.

The Security Council managed to find a link to international peace and security in order to pressure Libya over the bombing of Pan Am flight 103. The ICJ’s rerusal to second-guess the Council, at least at the provisional measures stage, suggests that the Council might be able to go quite a long way even in respect of some of the treaty crimes over which jurisdiction is proposed. Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114.

Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174.

Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 1954 I.C.J. 47.

I am here echoing U.N. Charter art. 1.

While the Security Council has "primary responsibility" for international peace and security, U.N. Charter art. 24, the Assembly also has a significant role,see Certain Expenses of the United Nations, 1962 I.C.J. 151 (emphasizing the broad powers of the Assembly when it is acting in support of the basic aims of the organization).

The Assembly’s general powers to further the humanitarian, economic, and social purposes of the organization put it in an even stronger position than the Security Council in respect of the "treaty offenses." Seesupra note 16.

ILC Draft,supra note 1, at 46, asserts: Moreover, a treaty accepted by a State pursuant to its constitutional procedures will normally have the force of law within that State—unlike a resolution—and that may be necessary if that State needs to take actionvis-à-vis individuals within its jurisdiction pursuant to the Statute. This is bad law on its face in respect of the legal systems, for example, of the United Kingdom, New Zealand, and Samoa (and of most former British colonies). In the case of the United States, the self-executing/non-self-executing gloss on the treaties as law of the land provision in the supremacy clause of the Constitution, art. VI, cl. 2, makes it certain that legislation would be required over and above any ratification of the Statute.Restatement of the Law (Third) Foreign Relations Law of the United States § 111(3). In the case of the Tribunals for Former Yugoslavia and Rwanda, the UN Charter and the resolutions of the Security Council were not thought adequate to give domestic effect to the obligation to surrender fugitives. Seeinfra note 24 and accompanying text. I suspect the end result is the same in the international criminal justice area in many jurisdictions: even with a treaty, statutory action is necessary; in jurisdictions where a ratified treaty really would be the law and a sufficient basis for action, the same result could be achieved by legislation giving effect to a UN resolution, that legislation being adopted under the foreign affairs powers of the legislature. Note also that states manage to cooperate with the international organization INTERPOL in spite of its lack of a constituent treaty.

Amnesty International has produced a very useful collection on the statutory efforts of the small number of states that have found it necessary (or seen fit) to legislate to ensure domestic compliance with their obligations under the Charter (and the Security Council’s resolutions) to the Tribunals for Former Yugoslavia and Rwanda. Amnesty International,International Criminal Tribunals: Handbook for Government Cooperation (AI Index: IOR 40/07/96, Aug. 1996).

E.g., Kenneth J. Harris & Robert Kushen,Surrender of Fugitives to the War Crime Tribunals for Yugoslavia and Rwanda: Squaring International Legal Obligations with the U.S. Constitution, 7 Crim. L.F. 561 (1996). Recently, however, a federal court in Texas denied an extradition request by the U.S. government under its agreement with the Rwanda Tribunal.In re Ntakirutimana, 1997 U.S. Dist. LEXIS 20714 (S.D. Tex. 1997).

E.g., Julian J.E. Schutte,Legal and Practical Implications, from the Perspective of the Host Country, Relating to the Establishment of the International Tribunal for the Former Yugoslavia, inThe Prosecution of International Crimes, 207, 222 (Roger S. Clark & Madeleine Sann eds., 1996) (on Netherlands arrangements); André Klip,Italy and United Nations Conclude Enforcement Agreement, 13 Int’l Enforcement L. Rep. 286 (1997) (Italy agrees to accept no more than 10 prisoners).

ILC Draft,supra note 1, at 46.

Created by the Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX), U.N. GAOR, 20th Sess., Supp. No. 21, at 47, U.N. Doc. A/6014 (1966).

Created by the International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967).

Established at Hamburg in accordance with Annex VI to the United Nations Convention on the Law of the Sea, U.N. Doc. A/CONF.62/122 (1982).

1996 Report of Preparatory Committee, supra note 1, at 9.

I have not seen a draft of one.

It has also been suggested that rules of evidence and procedure should be approved at the diplomatic conference. For a useful draft of such rules, based on the Former Yugoslavia and Rwanda Rules, see Draft Set of Rules of Procedure and Evidence for the International Criminal Court, Working Paper Submitted by Australia and the Netherlands, U.N. Doc. A/AC.249/L2 (1996).

Creativity abounds when it comes to the General Assembly and relationships. Observer status was invented for nonmembers, such as the Holy See and Switzerland, and extended to certain liberation movements. Observer status (ill defined) has also been extended to a wide range of international governmental organizations and some nongovernmental ones, such as the International Committee of the Red Cross. An "implied power of the General Assembly observer status" for an NGO is presumably more desirable than the "consultative" relationship that NGOs have with ECOSOC under U.N. Charter art. 71. A way has even been found to extract a financial contribution not only from the Holy See and Switzerland but also from Nauru and Tonga—nonmember, nonobservers that participate in some of the organization’s activities. In short, there is ample room for innovation with the ICC.

Draft,Report of the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea, Regarding Practical Arrangements for the Establishment of the Tribunal: Vol. I, at 132, U.N. Doc. LOS/PCN/152 (vol. I) (1995) [hereinafter ITLOS Draft]. The IAEA and ITLOS arrangements are examples of the functional implied powers of the General Assembly. The states parties to the Convention on the Law of the Sea recently concluded an Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, U.N. Doc. SPLOS/25 (1997), based on the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 U.N.T.S. 95, and the General Convention on the Privileges and Immunities of the United Nations,opened for accession Feb. 13, 1946, 1 U.N.T.S. 16. A similar agreement would be needed for the ICC.

1996 Report of Preparatory Committee, supra note 1, at 10. The ITLOS Draft,supra note 36, also includes arrangements for cooperation between the UN Secretariat and the Secretariat of ITLOS and for the issuance of a UN laissez-passer to judges and some officials. Some delegations have not been in favor of carrying forward these provisions to the ICC.

Most parties to the Statute of the ICC will be UN members. Two nonmembers, the Holy See and Switzerland, have been participating actively at the Preparatory Committee and may well ratify the Statute.

But not necessarily so. The current arrangement for the International Tribunal for the Law of the Sea is that [t]he contributions to be made by States Parties shall be based upon the scale of assessments for the regular budget of the United Nations for the corresponding financial year, adjusted to take account of participation in the Convention. This shall be applied provisionally pending the adoption of a scale by the Meeting of States Parties. ITLOS Budgetary Matters,supra note 7, at 1. Some future haggling is expected. The states parties presumably can cut any deal, consistent with any rules agreed upon in the treaty, on which a majority vote, or better a consensus, can be reached. Reference has been made in the Preparatory Committee to the Universal Postal Union formula, whereby states are classified into a few categories with increasing numbers of shares of the cost. No one state ends up with anything like the proportion that the United States pays of the UN budget.

E.g., Roger S. Clark & Felice Gaer,The Committee on the Rights of the Child: Who Pays?, 7 N.Y.L. Sch. J. Hum. Rts. 123 (1989).

International Covenant on Civil and Political Rights,adopted Dec. 19, 1966, arts. 35–36, 999 U.N.T.S. 171;see also Single Convention on Narcotic Drugs,done Mar. 30, 1961, arts. 6, 10, 16, 520 U.N.T.S. 204 (International Narcotics Control Board charged to UN funds).

Committee Against Torture, created by the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment arts. 17–18, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1985).

Convention on the Elimination of All Forms of Racial Discrimination,supra note 29, art. 8.

The amounts in themselves were quite trivial for each state concerned but in the aggregate they led to a financial crisis over and above the recurring UN crises through nonpayment.

G.A. Res. 47/111, U.N. GAOR, 47th Sess., Supp. No. 49, vol. I, at 192, U.N. Doc. A/47/49 (1993). In demonstration of the inertia principle in foreign affairs, only about 20 states have deposited their instruments accepting the amendments to the two conventions. Functionally, the General Assembly resolution has had the same effect as the requisite number of ratifications would have had.See Financial Situation of the Committee on the Elimination of Racial Discrimination, U.N. Doc. A/52/463 (1997) (detailing arrears, amounting to $224,499, among states parties through 1993 and still unpaid in 1997).

1996 Report of Preparatory Committee, supra note 1, at 10. It has also been suggested that confiscated criminal proceeds might be available. It seems unlikely that drug offenses and money laundering (which might provide some forfeitures) will be within the Court’s jurisdiction. Funds confiscated from genocidists and war criminals ought surely to go to victim compensation rather than to administration.

The Peace Palace, the ICJ’s quaint premises in the Hague, was built early in the century through the largesse of the Scottish American industrialist Andrew Carnegie. Such capital investment is obviously a problem for a fledgling institution. The premises for ITLOS are being supplied by the German government. ITLOS Draft,supra note 36, at 155–57. The long-suffering Dutch balked at providing free premises for the Tribunal for Former Yugoslavia, which eventually had to rent from an insurance company. The Netherlands must, nevertheless, be considerably out of pocket from the Yugoslavian enterprise. Schutte,supra note 25. At the time of writing, the Yugoslav Tribunal has only one courtroom available, so that the two current trials are being alternated on a two weeks on/two weeks off basis. Through a generous gift of the British government (about U.S. $500,000), the Tribunal will soon have an additional "interim" courtroom, which will ease scheduling problems even though "this new facility will also offer reduced amenities: less computerisation and no public access." Bull. Int’l Trib. Former Yugo., Aug. 4, 1997, at 1.

M. Cherif Bassiouni,The Commission of Experts Established pursuant to Security Council Resolution 789: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, inThe Prosecution of International Crimes, supra note 25, at 61, 68–71.

The language comes from U.N. Charter art. 100.

1996 Report of Preparatory Committee, supra note 1, at 10. The Security Council might, in such cases, attribute the costs to the peacekeeping budget, funded so that the larger economies paid a larger share, or as was done, in part, with Former Yugoslavia and Rwanda, apply them to the regular budget. The latter caused some dissension among developing countries.

The United States makes the case for some cost shifting to individual states that initiate a complaint or are otherwise especially interested: The initiation of a case triggers a potentially very costly and complex investigative process, and often relieves a country of burdens of investigating or prosecuting itself. The kinds of cases contemplated for the court often will involve large-scale situations, which the Prosecutor would presumably then be obligated to investigate and try. In such cases, action of one or a few States could have very significant financial consequences for all. Even a single case, if particularly complex, could be very costly. Comments from States,supra note 9, at 24. The U.S. comment adds, very reasonably, "Some formula could be found which is fair to States without adequate financial means."Id.

The Secretary-General made a preliminary foray into the question of cost, in response to the ILC Draft,supra note 1. His report was presented to the Ad Hoc Committee, which preceded the present Preparatory Committee.Provisional Estimates of the Staffing, Structure and Costs of the Establishment and Operation of an International Criminal Court, Report of the Secretary-General, U.N. Doc. A/AC.244/L.2 (1995) [hereinafterProvisional Estimates]. After an excellent survey of the permutations and combinations, this report concluded that there was "such a large number of unknown variables that the Secretary-General does not find it possible to develop a realistic set of assumptions on the basis of which estimates could be prepared."Id. at 14. Two hardy souls have tried, very creatively, to come up with some numbers, using in particular the experience of Former Yugoslavia and Rwanda. Thomas S. Warrick,Organization of the International Criminal Court: Administrative and Financial Issues, inInternational Criminal Court, supra note 3, at 37; Daniel Mac Sweeney, Prospects for the Financing of an International Criminal Court (World Federalist Movement/Institute for Global Policy, Discussion Paper, 1996).

At the risk of overkill, one might note that the UN regular budget is half the purchase price of one of the B-2 stealth bombers that seem to be allergic to water. Tim Weiner,The $2 Billion Stealth Bomber Can’t Go Out in the Rain, N.Y. Times, Aug. 23, 1997, at A5.

Renewing the United Nations: A Programme for Reform, Report of the Secretary-General 6, U.N. Doc. A/51/950 (1997). Not much danger of domineering World Government from this lot!

Less than U.S. $2 million was spent by the Division on Crime Prevention and Criminal Justice in Vienna for developing criminal justice policy and technical assistance worldwide.

Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Report of the Secretary-General, U.N. Doc. A/C.5/51/50 (1997).

The Secretary-General has pointed out,Provisional Estimates, supra note 52, at 12: Preparations for trial would include securing the attendance of all witnesses, ensuring that witness-protection measures are in place, ensuring that sufficient witnesses are available to give evidence before the Trial Chamber as the trial progresses and ensuring that witnesses are adequately provided for in terms of accommodation and meals and loss of income. A number of the proposals before the Preparatory Committee place the witnesses and victims’ protection function with the registry (as in the case of the Former Yugoslavia and Rwanda Tribunals) rather than the prosecutor, but the costs would be just as real.E.g., Compilation, supra note 1, at 204–06.

U.N. Doc. A/C.5/52/4 (1997) (Former Yugoslavia); U.N. Doc. A/52/13 (1997) (Rwanda). About $10 million of the 1997 budget for the Yugoslav Tribunal remained unspent at the end of that year and was to be carried over to 1998. U.N. Doc. A/52/696 (1997). The budget for Rwanda was expected to be fully spent. U.N. Doc. A/52/697 (1997). For 1998, the General Assembly was to approve a budget of $62,331,600 for Former Yugoslavia, U.N. Doc. A/52/724 (1997) (draft resolution), and of $50,879,100 for Rwanda, U.N. Doc. A/52/726 (1997) (draft resolution).

Warrick,supra note 52, at 104. His further suggestion to spread the cost at the rate of $1 million apiece among a posited 60 initial parties to the Statute is totally impractical in a world where the poorest members of the United Nations contribute about $100,000 each in dues. Some have difficulty findingthat sum in a total governmental budget that in some cases is below $100 million a year.

Or even one that does not: Whitewater Special Prosecutor Kenneth Starr’s enquiry into the Clintons was said by July 1997 already to have cost $30 million—enough to keep the Yugoslav Tribunal afloat (just) for another year. Michael Isikoff & Howard Fineman,A Starr-crossed Probe?, Newsweek, July 7, 1997, at 31. Which has the greater social utility? On another front, the FBI at one stage had 700 agents working on the TWA 800 crash. The National Transportation Safety Board, soon to become the last serious investigator of that incident, will spend $27 million on its efforts, or half its annual budget. Of course it may not turn up anything criminal! Mark Hosenball & Matt Bai,What Really Happened? The FBI Prepares to Close Its Books on TWA 800, Newsweek, July 21, 1997, at 36.

In 1995, the U.S. federal government spent $16.223 billion on criminal justice (including investigations, prosecution, representation, judges, and prisons). The United States budgeted $21.950 billion for 1997. Executive Office of the President, Office of Management and Budget, Budget of the United States Government, Analytical Perspectives, Fiscal Year 1997, table 1.11. State and local expenditures countrywide are probably four or five times the federal total.

It was said that the prosecution and defense of the Oklahoma City bomb accused, Timothy McVeigh and Terry Nichols, would cost taxpayers about $50 million. This far exceeds the estimated $9 million for prosecution and $10 million for defense in the O.J. Simpson trial. Maurice Ossley,Oklahoma Bomb Trials Expected to Cost $50 Million, Chicago Tribune, Feb. 18, 1997, at 1;see also Comments by United States, U.N. Doc. A/AC.244/1/Add.2 (1995) ("[I]t took a massive, highly expert forensic effort of well over a year, and at times employing more than 1,000 persons, to collect and examine all the debris from the mid-air bombing of Pan Am 103—an effort that ultimately proved critical in solving the case.").

A proposal that an accused be permitted to plead guilty led to some puzzled comments from civil and Islamic lawyers.Compilation, supra note 1, at 170, 173–74 (abbreviated trial after guilty plea, proposal by Argentina and Canada). Even some common lawyers professed in the debates to be offended by the possibility of plea bargaining, an even more mind-boggling prospect to some civil lawyers than the guilty plea itself!

Prosecutor v. Erdemovic, Case No. IT-96-22-T (Int’l Trib. for Former Yugo., Appeals Chamber, Oct. 7, 1997),discussed in Faiza Patel King & Anne-Marie La Rosa,The Jurisprudence of the Yugoslavia Tribunal: 1994–1996, 8 Eur. J. Int’l L. 123, 172–77 (1997).

Bassiouni,supra note 48.