Comment on the Universality Lecture Question: “Is universal state participation in the ICC system desirable and, if so, how could that be achieved?”
I understand a cautious approach towards universality based on the instances in which it results in a lowest common denominator type of institution, in which all members are brought down to the level of the least X members, in which X can be least compliant, least human rights abiding, least developed, whatever. However, in the case of international law, I think the very need for its existence implies a need for universality, in that so many of the seemingly intractable programs - like climate change and human trafficking - we (humankind) face are not at all impeded by boundaries drawn on a map. The corollary question is certainly much more difficult. A good place to start might be the regional courts, such as the Inter-American or European Courts of Human Rights. Perhaps if these institutions can be strengthened, we can use them as a sort of a building block to the ICC. However, there are risks in this approach, as it may only serve to solidify differences between these regions and get us further away from the end goal.
Universal participation in the International Criminal Court is desirable because it would increase the legitimacy of the court, but should not be the top priority for the ICC because it is not crucial to its function. The ICC was created to supplement local courts, not as a single dominant criminal court. This means that universal participation is not necessarily a critical factor, because a country could choose not to participate because they have a sufficient court system. From a different side, however, a country’s ability to try their own criminals should not necessarily keep them from signing and ratifying the Roma Statute because under the law they would still be able to try their own criminals. More international support for the ICC would increase its legitimacy especially as an organization funded by the United Nations. It is difficult for the United Nations to justify paying the current 96 million dollars in costs of the ICC when many of its participatory states have not ratified the treaty. Because of this discrepancy, the ICC should push for increased state participation. They could achieve this first by obtaining US support - I believe the US could be persuaded to ratify the treaty if the UN put sufficient pressure on them. Once the US had ratified the treaty, other nations would follow suite.
I agree with you that making the ICC a universal institution will help improve its legitimacy and this should be the will of anyone engaged in the fight against the impunity of international crimes namely those included in art 5 of the Rome Statute.
Though, I have to point out that your statement that "More international support for the ICC would increase its legitimacy especially as an organization funded by the United Nations" is not completely true. The ICC is a treaty based institution; it is not a UN created institution. Its whole existence and the participation to its activities is all based on the Rome Statute.
Also I have to point out that your other statement "It is difficult for the United Nations to justify paying the current 96 million dollars in costs of the ICC..."is wrong as the Court is financed by its States Parties.
Universal state participation should absolutely remain one of the fundamental long-term goals of the ICC because it would increase the agency of the court. A wider range of influence and authority has the potential to establish the ICC as more widely-recognized and well-respected authority and therefore as a more effective enforcer (greater ability to apprehend criminals who, without universal participation, might avoid arrest by moving to territories of non-state parties) and larger deterrent to future atrocities. In addition, a larger number of state parties might lead to a greater geographical representation of cases and further the cause of international justice as an achievable agenda. State participation can be encouraged in conjunction with political and economic incentives through other international organizations to appeal to the interests of states.
I believe that universal state participation should be a goal for the ICC; however, I do not believe it should be an immediate priority. It would be ideal if the ICC were able to achieve universal participation because those that are not state parties have no obligation to arrest/detain indictees, unless the security council rules that the non-state party is obligated to arrest an individual--a rare moment. The best way to get governments to understand the importance of arrest warrants without always turning to long-lasting political dialogue is through achieving participation in the ICC; we want to, eventually, transform these moments of political dialogue into immediate response. However, the first priority is to actually ensure the participation of current state parties to the ICC; there is no point in expanding participation if current participation has been meaningless to certain signatories. For example, President Al-Bashir of Sudan, an indictee of the court, has visited Chad twice (in 2010 and 2011), Djbouti (in 2011), Kenya (in 2010) and Malawi (in 2011)--all state parties By allowing Al-Bashir to visit, all four state parties violated their obligations to the ICC under the Rome Statute. The priority needs to be enforcement of obligations of the state parties to the ICC; expansion must come when enforcement seems to actually be feasible.
I think we need to first say what we mean by “state participation.” I think if it's active and constructive participation then we should aim for a more inclusive and universal participation. It's difficult to see how more helpful and supportive voices could hurt given the criticisms currently being directed at the institute. On the other hand, if a state joins, but is obviously detrimental then it may have been more beneficial to leave the state out until it proved to be more useful. With all the difficulties the ICC faces already just in terms of budgetary concerns in things like maintaining contact with member states to promote cooperation and participation. For instance, it may have to spend money to send people out to garner support in member states. Adding deadweight or an actively adversarial state could very well be detrimental as it may result in the ICC just wasting time and resources on a unsupportive member. Just trying to adjust for new states wouldn't be helpful for the ICC if they are already overworked. Therefore, It might just be more trouble than it's worth. Unless, the new state is likely to be in the category of constructive, then it may be better for the ICC to focus its energies on other issues than universal participation. For instance, full participation from those which are already members as mentioned in another comment.
Universal participation in the ICC is desirable without doubts, not only for its legitimacy as “International” Criminal Court, but also for functioning properly under the cooperation of the global community. Many benefits, including varied methods of political pressures for arrests, wider geographical coverage, and possibly better funding, will come along with the universal participation. To achieve this goal, the foremost step to achieve should be encouragement of super powers to join, including the U.S., Russia, and China, in two of which the Statue is not in force. All of the three states are difficult to persuade, and each state has its own reasons not to back up ICC. The institution’s job is to pursue them with a variety of diplomatic means; in this scenario, the participations of the third party human rights groups are essential. They should never stop letting the public of the three states be aware of heinous crimes occurring in the global society and advertise what can be done to stop them. Recently, especially in the U.S., starting an all-out war is extremely unpopular in the public. Usually diplomatic means are discussed instead; however, the discourse also should include the employment of the concrete justice system that can be applied in any region, as a preventive legal institution for future hostility. This will turn the public’s attention to ICC and what it has done for the last decade, consequently supporting ratifications of the Statue.
Universal state participation in the ICC system is certainly desirable. Most of all, the ICC has been questioned legitimacy in exercising jurisdiction in that world powers including the United States, China, Russia and Japan have not ratified the Rome Statue. They have separately concluded treaties where they promised not to extradite criminals of serious crimes one another, which violate just cogens and damage to legitimacy of the ICC. In addition, those world powers' passive attitudes actually affect cases in which they are not involved. If a crime is conducted in a non-member state of the ICC, its jurisdiction over the nation requires a resolution and request by the Security Council. Then, a cooperation by the permanent members of Security Council is essential. Take Sudan Darfur genocide case in 2005, the United States was reluctant to request jurisdiction from the ICC and tired to propose establishing a special court. Even though the ICC's jurisdiction was decided thank to NGOs and member states' efforts and active negotiations, a U.S or China's veto could have establish a special court instead that would make the ICC only nominal. Given that such case can happen anytime, the ICC should strive to garner support especially from the powers, and to encourage them to ratify the statue.
I think that the question of universal state participation of the ICC goes hand in hand in states' involvement in the United Nations. Even in the United States, many people do not see the legitimacy of the United Nations, and tend to defund it whenever going into power (i.e. US treatment of funding for UNESCO). I think that it needs to be established, but it need not be the ICC's main work-- I would argue that more states would recognize the ICC and its orders after it establishes some more legitimacy. The prosecution of cases through the ICC would show that the ICC serves an important function within the international community. With that, if the ICC could show that they could actually enforce its orders, there may be more voluntary universal state participation, rather than forcing it.
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