Ditchley’s occasional serendipity had set us to tackle our long-chosen subject at just the same time as government officials assembled in Rome were considering the terms of a possible convention to set up a permanent International Criminal Court (ICC). We reminded ourselves from time to time that a court was not the only way of dealing with crimes of the kinds in question, but we touched upon other mechanisms primarily as they would relate to an ICC; the ICC idea inevitably provided the central focus of our discussion. We were aware that even to have the idea under serious governmental discussion reflected remarkable change - a decade ago it could scarcely have featured on any realistic-looking agenda - and that the complexities we found ourselves debating reflected the challenges of setting up a permanent new central mechanism within what remained, despite globalising trends, in most ways a decentralised world system.
What practical ends would the ICC be intended to serve? Deterrence of bad behaviour? But even if the likelihood of the ICC’s calling the guilty to effective account were on average high - and that would not easily be achieved - it was open to question whether calculations of such kinds would have as powerful a preventive effect in situations where political, ethnic or other such motivations ruled as in “ordinary” criminal settings. Deterrent value was not ruled out - it might, as occasional historical precedent suggested, make a useful contribution in some scenarios - but it could not serve as the main justification. The ultimate test, no doubt, must be whether the incidence of bad behaviour became lower than it would have been in the absence of an ICC; but the main contributions to that end might be in the progressive reinforcement of norms, accountability and law-abiding cultures, in the cleansing of historical record and in the assuaging, through better equity, of resentment among victims and outraged public opinion.
What offences should be covered in the ICC’s jurisdiction? We reached clear agreement that over-ambition would be damaging (inter alia because of the undesirability of having parties to the convention tempted to attach jurisdictional limitations to their ratifications). While there should be no implication of subtraction from the existing acquis of international law, it would be inappropriate and unwise to propel the Court into areas where the law was contentious or unclear, or to use the establishing convention as an opportunity for tidying up the law, enhancing it or giving it new specificities. The concept of crimes against humanity had, we believed, already satisfactorily broken free of the “armed conflict” constraint. Most of us thought that the Court ought to steer clear of the imprecise notion of “aggression”, and of areas of the laws of war (like perhaps proportionality in collateral damage) which were either contentious in principle or especially difficult in application. We noted, without seeking to answer, a presently-hypothetical question about whether use of biological or chemical weapons, once securely prohibited by widely-ratified treaty, should fall within the Court’s purview even if the terms of the treaties did not explicitly create offences. Some of us liked the idea of bringing certain sorts of narcotics-related crime within the Court’s competence, for example as a referral option available to small states lacking the capability to tackle these nationally; but there was, said counter-comment, a risk here both of responsibility-evasion and of overloading the Court’s inescapably-limited capacity.
We seemed in agreement that the Court’s jurisdiction must bear upon individuals, not upon states as such; but leaders should of course be personally open to indictment. That possibility might occasionally help deterrence; and it was in any event unacceptable (as public concern had already brought home in respect of recent conflicts) that big fish should appear to be exempt when minnows were punished.
It was, so most of us thought, evident that there would need to be some pragmatic threshold of gravity needed to make the workload manageable and apt - the Court should not, for example, be expected to pursue isolated events driven by individual caprice, however disagreeable. The threshold might take account of scale, of repeated frequency, of depth of malice or of tip-of-the-iceberg systemic indication. These, we realised, had to be matters of judgement; and that took us into what was perhaps the most awkward issue our discussions identified.
That issue concerned whether, and if so how, political input might be made to the Court’s operation. There was more than one angle to this. First, it was generally acknowledged that in the awkward and diverse circumstances of the real world the requirements for making peace and for securing justice under the law might often be in tension, particularly when progress in the former could entail negotiating deals - including perhaps amnesty-type bargains, whether or not explicit, for individuals or groups - with leaders who might well be strong prima facie candidates for criminal indictment. Amnesty in such situations was historically a familiar instrument of statecraft, and recent instances such as Chile, Northern Ireland and, in a different way, South Africa illustrated governmental decisions to abate the strict requirements of normal justice in the perceived interest of establishing peace and reconciliation. Who was to make such essentially-political judgements in respect of matters within the ICC’s purview? The Court itself would not be professionally equipped to do so, and it would not be easy to assign to the prosecutor any specific right or duty to take political considerations into account; yet it was possible to envisage scenarios in which prosecutorial operation unconstrained in such ways might actually do bull-in-a-china-shop harm, at least as measured in lives avoidably lost or strife prolonged. Situations would of course vary widely; the manifest pursuit of wrongdoers might itself often, as in the past, be an important element in entrenching peace and acceptance; no tidy general rules could be established to determine trade-off. But occasional trade-off against the rigidity of law appeared inevitable. And the working of the Court, even aside from this peace:justice tension, might well call for judgement about priorities within limited resources which could become, at least in a small yet significant proportion of instances, highly contentious. As one participant put it, the operation of any court anywhere entailed some relationship with power; another noted that many mature judicial systems imported, formally or otherwise, some mechanism of “public interest” input to qualify the pure legal and judicial logic of pursuing crimes. On these views the ICC could not expect to be wholly exempt from some such influence, and the realistic question was whether or not the processes of political input were to be systematic and open.
Our exchanges on how this basic conundrum should be tackled turned largely on the role and rights of the Security Council - a major question in Rome, we knew. It was evident that the general climate of international opinion had moved beyond earlier concepts viewing an ICC as essentially as instrument of the Security Council; but national views still spanned a spectrum from those who wanted Security Council clearance - including the availability of permanent members’ veto - to be a prior condition of ICC indictment, to those who believed that there should be no right at all of Security Council interposition. We heard of the “Singapore compromise” which envisaged that there would be a reserve right for the Security Council, acting unanimously, to delay a prosecution (though not strike it out) if it judged this desirable for peace-making reasons. Some of us thought this a useful way forward if - a large if - consensus could be developed around it. We noted that a further safeguard for concerned UNSC permanent members might lie in the fact that the enforcement of ICC judgements, if a state involved did not fulfil its own primary responsibility, would anyway rest in practice with the Security Council under the normal veto-including rules of its operation.
The issue of relationship with the Security Council partnered in importance that of relationship with national judicial systems - “complementarity”. We seemed comfortable with the general principle that prime responsibility for the pursuit of the crimes in question should lie with nations, and we noted that as a result few if any cases might actually come to the ICC in respect of countries with well-organised and mature systems of justice (another safeguard for those in Rome uneasy about the project?) The existence of the ICC in partnership might indeed provide a stimulus to the tightening and rigorous operation of national systems. The ICC would come into play where systems were non-existent or ineffective, or where political diktat could prevent or override proper trial, or perhaps where majority prejudice (as on ethnic grounds) regularly collided with fairness. We noted rather uncomfortably that the application of such criteria for ICC intervention might call for difficult judgements, and that it was not yet clear how the Court would be equipped to make them, whether in respect of national systems as a whole or (still more) of particular trials suspected of unfair outcome, whether in the direction of severity or of leniency. We noted also that difficult judgement might again be needed in the operation of rules - necessary though they seemed in principle - whereby ICC prosecution should not be artificially debarred, on double-jeopardy pretext, by the conduct of bogus national trials, by the insertion of inadequate truth-and-reconciliation commissions, or by unjustified or over-sweeping national amnesty. (We were indeed not sure that official deliberations had yet sufficiently addressed the general issue of ICC relationship with TRCs or with amnesties).
We heard vigorous emphasis on the importance of having the ICC apparatus properly funded, both in amount and in source. As to the latter, voluntary contribution would be a bad principle - at the least, contributions ought to be from all convention-ratifying countries in proportion to their standard UN scale assessment. As to total amount, it was clear that inadequacy would both make the judgements of priority in prosecutorial effort even more difficult and conflict with thoroughness, fairness and despatch - the lack of investigative and similar resources had for example already meant, in relation to existing ad hoc tribunals, that suspects were often held unconscionably long in custody before trial. Nevertheless, funding arrangements would need to be flexible enough to avoid situations in which, if the Court’s business at one time or another were not at a high level, public criticism might attach to provision apparently inactive yet expensive.
Proper funding would also be a significant factor, alongside others, in securing the manifest and effective prosecutorial independence which we all agreed would be critical for international confidence in a new apparatus. The objective professional quality of key personnel was an additional key dimension. On other aspects most of us, while recognising that independence did not have to mean freedom from any political context or limitation, believed that full UNSC control over indictment would be too heavy a constraint to be compatible with worldwide credibility.
We had a good deal of debate about possible mechanisms to monitor or moderate the prosecutor in his decisions to investigate or indict (given that the sensitivity and judgmental content of such decisions would often be high). It might be undesirable, so it was suggested, to leave the role of supervision to the trial judges themselves; and a possible way of separating the oversight function might be to set up a standing review chamber just for that role. Many of us liked this idea, while recognising that its aim would have to be essentially of a judicial character, not an attempt to provide political-judgement input.
There surfaced in our discussions a substantial range of further ideas which time did not allow us to probe fully. Should the prosecutor be able of his own motion to initiate investigations? - we were slightly sceptical of this, but we noted a possible right for victims, and not just states, to move him. Should trial in absentia be allowed? - we mostly thought not, but the act of indictment might itself sometimes be a valuable instrument. We heard a powerful plea that the proposed convention should contain provision requiring at least UN or UN-approved forces - military and police - positively to support ICC investigation and related activities, including those related to the rights of the defence as well as of the prosecution; the scandal of arrest warrants apparently ignored should not go unaddressed. We heard also suggestions that there should be discretion for the ICC prosecutor to make the material produced by his investigations available to national courts; and for the Security Council, under Article VII, to ask the ICC to consider matters (though prosecution must not be mandated) going beyond its normal convention-assigned jurisdiction, or relating to states not party to the convention.
Throughout the conference we were conscious of the severe political difficulties understood to bear on the prospects of prompt United States adherence to any convention likely to emerge from Rome. We all recognised how undesirable it would be to have established a major new international instrument if the world’s strongest power, in practice indeed virtually the prime steward of the international system, were to stand aside (and we were reminded that the superficial parallel of the Ottawa agreement on anti-personnel landmines was scarcely a precedent adequate in respect of so general an instrument). We found no clear agreement on whether US concurrence was a sine qua non; on whether the best course might be to conclude a convention in the hope that before too long the United States might come round, through further reflection or experience, to recognise that there were in prospect adequate protections of national interest; or on how much should be conceded from the ideal preferences of others in order to maximise this chance. Many of us were fully ready to recognise a legitimate and in some degree special concern of the United States, as having been so often in recent years the prime cleaner-up of international messes, not to have a mechanism set up that might in some circumstances tend to add to rather than clean up messes, or might bear disproportionately or unjustly on the personnel of the cleaners-up; but we mostly believed that a convention with safeguards such as we had discussed would in practice provide powerful protection for such concerns.
Would a less-than-ideal ICC convention be better or worse than none? It depended of course in part on how much less, but differences of judgement were anyway evident among participants. The preponderant view seemed to accept that the Rome outcome - if a tidy and agreed one at all - might best, both for consensus and for operational practicality, be pitched towards modesty in aim and ambit, perhaps with specific provision for later review in the light of experience. But we recognised that pre-arranged perfection for every desire and every conceivable scenario was not attainable; that every participating state would have to accept some trade-off, and some theoretical risk; and that fully-accepted legitimacy for an ICC would have to be built progressively, amid widespread habits of suspicion of “external” criminal justice - firm political will would be essential to sustain it at the outset of its evolution.
This report reflects the Director’s personal impressions of the conference. No participant is in any way committed to its content or expression.
Chairman: Justice Richard J Goldstone
Justice, Constitutional Court of South Africa; Prosecutor, International Criminal Tribunals for former Yugoslavia & Rwanda, 1994-96
PARTICIPANTS
ARGENTINA
Ms Giselle Hantz
Associate, Latin America Group, Debevoise & Plimpton, New York
COMMONWEALTH SECRETARIAT
Ms Dianne Stafford
Deputy Director, Legal & Constitutional Affairs Division, Commonwealth Secretariat
CANADA
Mr John H Sims QC
Assistant Deputy Attorney General, Citizenship and Immigration Law, Department of Justice, Ottawa
Mr Paul Vickery
Director, War Crimes & Crimes Against Humanity Unit, Department of Justice, Ottawa
CANADA/NEW ZEALAND
Professor Peter Burns QC
Professor of Law, University of British Columbia
GERMANY
Dr Karin Oellers-Frahm
Research Fellow, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
INTERNATIONAL COURT OF JUSTICE
Judge Carl-August Fleischhauer
Judge, International Court of Justice
IRELAND
Professor Cedric Thornberry
Head of Civil Affairs for UNPROFOR in former Yugoslavia and Deputy Chief of Mission, 1992‑94
NEW ZEALAND
Mr Richard Kennaway
Institute of Commonwealth Studies, University of London
UNITED KINGDOM
Mr Anthony R Brenton
Director, Global Issues, Foreign and Commonwealth Office
Professor Christopher Greenwood
Professor of Law, London School of Economics & Political Science
Professor Françoise Hampson
Professor of Law, University of Essex
Mr Jeremy Lever QC
Fellow, All Souls College, Oxford
Dr Barrie Paskins
Senior Lecturer on Ethical Aspects of War, Department of War Studies, King’s College London
Professor Adam Roberts
Montague Burton Professor of International Relations, University of Oxford
Ms Jessica Simor
Barrister; legal adviser to the Human Rights Ombudsman for Bosnia and Herzegovina, Sarajevo, 1996‑97
Mr Nicholas Stewart QC
Chairman, Bar Human Rights Commission
UNITED STATES OF AMERICA
The Hon Harry G Barnes Jr
Director of Conflict Resolution and Chair, Human Rights Committee, The Carter Center, Atlanta
Professor Douglass W Cassell Jr
Executive Director, International Human Rights Law Institute, DePaul University College of Law, Chicago
Professor Anthony D’Amato
Leighton Professor of Law, Northwestern University School of Law, Chicago
Mr Mark S Ellis
Executive Director, Central and East European Law Initiative, American Bar Association
Mrs Rita E Hauser
President, The Hauser Foundation; of Counsel, Stroock & Stroock & Levan (attorneys), New York
The Hon Donald F McHenry
Distinguished Professor of Diplomacy, Georgetown University
Professor Diane F Orentlicher
Professor of Law and Director, War Crimes Research Office, Washington College of Law, American University
The Hon Abraham D Sofaer
George P Schultz Distinguished Scholar and Senior Fellow, Hoover Institution, Stanford University
Mrs Marian Scheuer Sofaer
Lawyer
Professor Paul R Williams
Senior Associate and Director of Public International Law, Carnegie Endowment for International Peace