Stephen VasciannieTHE INTERNATIONAL Criminal Court exists. The Rome Statute establishing the Court entered into force on July 1, 2002, judges of the Court have been appointed, the independent prosecutor for the Court has taken up office and has started investigations, and 92 countries, as parties to the Rome Statute, are now subject to the jurisdiction of the Court. The Assembly of States Parties, which is intended to monitor the working of the Court, has already had two annual meetings. Various countries, including Jamaica, are giving consideration to whether they should ratify the Rome Statute.
So, should Jamaica ratify the Rome Statute on the International Criminal Court? One factor that suggests a positive response to this question concerns the purposes of the Court. The International Criminal Court has been established essentially to ensure that individuals cannot commit grave crimes with impunity. History provides numerous instances in which, under the guise of realpolitik, political leaders and soldiers have committed serious crimes: the Court exists to ensure that in at least some instances, those who commit such crimes may be brought to justice.
This objective if implementable should find ready support in most countries. Not only does it advance the notion that International Relations should include an important moral component, it also indicates that there should be limits to the abuse of human rights even in the context of warfare. Bismarck's famous 19th century dictum that the great questions of the day would be settled not by fanciful speeches and resolutions, but by 'blood and iron' may still resonate in some contexts; but the International Criminal Court stands as counterweight: blood and iron may predominate, but in the pursuit of political ends, persons inclined to commit wanton abuse may now need to consider the risk of criminal prosecution.
BALANCE
Secondly, Jamaica may be inclined to ratify the Rome Statute because this treaty seeks to achieve a fair balance between different perspectives as to how far International Law may reach into the affairs of States. The Rome Statute achieves this, for instance, through the identification of crimes made subject to the jurisdiction of the International Criminal Court and through the concept of 'complementarity'.
The Rome Statute identifies three types of crimes that are subject to the Court's jurisdiction, namely, genocide, war crimes and crimes against humanity. Naturally, there will be academic debates about the precise delineation of each of these categories, and particularly about the scope of crimes against humanity; but, in the main, the core features of each of these crimes is clear enough. The point for emphasis here, though, concerns the fact that only three, largely uncontroversial, categories have been placed within the jurisdiction of the Court.
Thus, few States would be inclined to argue that genocide should not be subject to some kind of control within the international system; and, similarly, because war crimes will usually involve an international component or will be on a scale that merits international concern, this category is not likely to prompt the view that only States (and not the International Criminal Court) should have jurisdiction for war crimes. In the case of crimes against humanity, when it is recalled that this category includes the most egregious crimes, such as murder, extermination, rape, sexual slavery, and the enforced disappearance of persons, again it is reasonable to argue that giving jurisdiction to an international court for such crimes is not necessarily a major incursion into the sovereignty of States.
The principle of complementarity also demonstrates sensitivity to State concerns. 'Comple-mentarity' connotes the idea that both the State and the Court will work together in matters concerning international crimes. More specifically, where the local system of a country is pursuing a criminal matter, the principle of complementarity will require the International Criminal Court to refrain from addressing that same matter. In any individual case, the local system may opt to turn the matter over to the International Criminal Court, and the Rome Statute has provisions as to when the Court may assume responsibility for a local matter; broadly speaking, though, the idea is that the local system will have priority in addressing cases arising within its territory.
SAFEGUARDS
Thirdly, Jamaica may be inclined to ratify the Rome Statute because this treaty seeks most appropriately to incorporate various safeguards for the accused, and to present a clear approach to criminal responsibility. As to safeguards, the Rome Statute incorporates the right to a fair trial, the right to legal representation, the presumption of innocence, and protection against double jeopardy, among other things. But this is not to suggest that victims are forgotten: quite apart from the fact that victims may sometimes derive satisfaction from seeing punishment meted out to criminals, the scheme takes into account victims' rights by providing for the possibility of compensation for victims. Thus, the Court has the power to determine losses incurred by particular victims, and to order that compensation be payable for such losses. This is a step forward for international justice.
As to criminal responsibility, International Law has long had to grapple with the applicability of the concepts of sovereign immunity and higher orders in the context of criminal justice. Where atrocities are committed, and where a Head of Government has actually ordered or directly committed those atrocities, should the Head of Government be able to rely on a defence of sovereign immunity? In the case of Augusto Pinochet in London a few years ago, this defence was ultimately not accepted, but there are no doubt instances in which sovereign immunity has shielded leaders from prosecution for international crimes. The Rome Statute rejects this defence: criminal responsibility before the International Criminal Court will apply to leaders.
HIGHER ORDERS
But, with respect to the defence of higher orders, criminal responsibility under the Rome Statute will also apply to foot soldiers. During the Nuremberg and Tokyo Tribunals following World War II, an important issue concerned the extent to which soldiers could claim that in committing various crimes they were simply obeying military instructions. This is a difficult issue, for, in some instances, particularly in the heat of battle, the foot soldier has little time to reflect on the lawfulness of an order. And, besides, the soldier may find himself damned if he does (obey an illegal order) and damned if he does not. In any event, the Rome Statute comes down on the side of responsibility, so that it is not a good defence to criminal charges (for genocide, war crimes, crimes against humanity) merely to claim that a person was acting on higher orders.
So far then, Jamaica should ratify the Rome Statute establishing the International Criminal Court because this treaty serves a laudable objective, takes into account State sovereignty concerns, retains safeguards to protect the wrongfully accused, and follows a clear approach to State responsibility. Other arguments will be considered next week.
Stephen Vasciannie is Professor of International Law and Head, Department of Government, UWI, Mona. He is also a consultant in the Attorney-General's Chambers.
