The Cost of Preventing Impunity: The ICC’s Misplaced Understanding of the Rome Statute

The Alleged Crime of Deportation in Myanmar

On 6th September 2018, the International Criminal Court passed a landmark decision ruling that it has jurisdiction over the alleged crime of deportation of Rohingya Muslims carried out in Myanmar which had a spillover effect in Bangladesh. The decision is a progressive step towards eliminating crimes that shake the conscience of the global community. However, in the process, the Court has made some troubling arguments which ought to set a dangerous precedent in the International Community. This post aims to address those arguments and highlight the fallacy of them.

International Criminal Court Being Customary International Law

The Court has highlighted that the introductory part of the Rome Statute of the International Criminal Court as well as the objectives it aims to achieve reflect its customary nature which may be binding on non-state parties as well. In order to do so, reliance has been placed on the Article 34 of the Vienna Convention on the Law of Treaties. The Court further went on to highlight that this article does not create obligations on non-parties to a treaty except in situations where the provisions of the treaty have become a norm of international law. This interpretation is problematic for two reasons.

First, under International Law, a treaty is considered to be reflective of customary law only if the same provisions are accepted as binding beyond the application of the treaty. This settled position of law is problematic when applied in the context of the Rome Statute. The procedure for the conduct of the trial mentioned in the Statute, for instance, is oddly specific to the Rome Statute and is not treated to be binding by the State Parties in situations that are not governed by the Statute.  It is indeed a plausible argument that various other treaties have adopted the trial procedure including articles concerning the rights of the accused, process of admitting evidence, and thus reflect its customary nature. However, this argument may be incorrect. The procedure in the Rome Statute is based on basic principles of Human Rights Law which are ingrained not only in international instruments but also in domestic legislation. For example, as per provisions governing rights of the accused (Articles 55 and 67), inadmissibility of evidence which has not been obtained through legitimate means (Article 59) are all human rights standards that are also customary international law. Thus, it is not the treaty which creates these rights but the pre-existing human right norms.

Second, the practices of states with respect to that treaty must be consistent. In fact, practise of states with respect to the Statute is not consistent. The primary argument against consistent treaty practice is that while the Statute was drafted by the representatives of various nation states, what was actually incorporated in the treaty was very different from what nations proposed. Clauses that nation states considered to be binding on either themselves or the international community were mostly not incorporated, as evinced by the dissimilarities between the draft submitted by the International Law Commission and the Statute. Further, nations such as the USA, Russia, the Philippines and China amongst others have withdrawn from the Statute. Even the state parties have failed to comply with the orders of the Court, such as the failure of Chad and Nigeria to arrest Al-Bashir pursuant to eight orders by the Court. Thus, treaty participation is not enough to create norms of Customary International Law.

Objective Legal Personality of the Court

The Court, in paragraph 48 of its decision has laid down that it has an objective legal personality. This coupled with the intention of the drafters to bring the Court into a relationship with the United Nations, and it helps the Court to establish jurisdiction over non-state parties to maintain international peace. In rendering this decision, the Court relied on the Articles 7, 15, 17 and 18 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. However, the Court failed to take into consideration various other principles, which are highlighted subsequently, that form the basis of the Agreement and run consistently throughout the agreement without being restrained to a few provisions. The Court was intended to be created as an independent institution with no authority of the UN. It was made clear that the mandate of both of these institutions were different and it was to remain that way. This has been specifically mentioned in Article 2 of the Agreement. The idea behind the Agreement was to ensure cooperation between the two institutions as has been made clear in the Articles 3, 7,15,17 and 18 amongst others which illustrates the cooperation between them. Placing reliance on these articles to infer that the Court may exercise jurisdiction over non-state parties such as the United Nations would be incorrect. This is because it would amount to an assumption that the relationship between the two institutions equates to inter-changeable mandates. This is not the case with the Court as it cannot do what the United Nations can do and vice-a-versa. This would be contrary not just to the intention of the Agreement to ensure cooperation between the two organisations but also to the intention behind creating these two independent, distinct institutions. Further, resolutions passed by a sub-organ of the United Nations cannot substitute an expression of a State’s consent to be bound by a treaty by virtue of the Article 11 of the Vienna Convention on the Law of the Treaties. Therefore, a relationship argument with respect to a member state of the United Nation being bound by a different treaty falls flat on its face.

The objective legal personality argument does not provide much support either. Legal personality indicates a capacity of possessing international rights and duties, but no specific powers. The intention behind providing such a legal personality was to ensure that the Court could enter into contracts and agreements, such as to purchase movable and immovable property for the functioning of the Court. The International Court of Justice in its Advisory Opinion on Reparation for injuries suffered in the service of the United Nations, distinguished the powers of a State and an international organisation by clarifying that an international organisation’s powers are limited by its purpose and functions as specified in its constituent document. It further noted that 50 states representing the majority of the court could bring an organisation such as the United Nations into existence. This organisation may also have an objective legal personality whose powers extend beyond its member States. However, the same powers could not be extended by analogy to other international organisations. This is supported by the wording of ‘as provided by this Statute’ in Article 4. The drafting history reveals that this wording was deliberately inserted after much deliberation and thus, any argument with respect to objective legal personality cannot be valid in law.

Conclusion

The Court’s purpose is to prevent impunity. However, in order to achieve this purpose, a cautious approach has to be taken to ensure that a wrong precedent is not set by the court. This could be as dangerous as the holding in Al-Mahdi, wherein the Court accepted his guilty plea without looking into the satisfaction of the elements of a crime under the Statute, contrary to the requirements under Article 65. Only time will tell the implications of this judgment.

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