Stephen Vasciannie SHOULD JAMAICA ratify the Rome Statute establishing the International Criminal Court, and thus become subject to the jurisdiction of the Court? The argument continues.
So far, I have mentioned the fact that the Court will help to prevent individuals from acting with impunity with respect to genocide, war crimes and crimes against humanity. The Court will also help to reinforce the notion that in matters concerning International Relations, respect should be shown, as far as possible, to considerations of morality and justice. And, towards these objectives, the Rome Statute specifies clear rules of criminal responsibility, even as it takes into account well-known sovereignty concerns of States.
Other provisions in the Rome Statute should prove attractive to Jamaica. So, for example, States parties are required, in selecting judges for the Court, to take into account the need for equitable geographical representation, and for gender balance, on the bench. Pursuant to the Rome Statute as well, the appointment process should have regard to the fact that women and children are often the most oppressed during times of armed conflict, so that legal experts in fields pertaining to the welfare of women and children shall be among those appointed.
Provisions such as these, together with the basic principle that criminals should not be shielded from justice, prompt the view that the Rome Statute represents, at least at the level of ideas, the triumph of liberalism in International Relations.
DEATH PENALTY
At the same time, however, two approaches in the Rome Statute appear to merit special attention in Jamaica. In the first place, although the Rome Statute expressly contemplates jurisdiction for cases of murder, including murder in the most disturbing circumstances, the International Criminal Court has not been authorised to impose the death penalty.
This is not surprising; International Law, as set out for example in the International Covenant on Civil and Political Rights, allows States to carry out the death penalty, as long as certain procedural and other safeguards are respected. Even so, however, there is a significant trend in International Relations away from the death penalty, evidenced by the increasing number of "abolitionist" States throughout the last decade, and by anti-death penalty resolutions passed annually by the United Nations Commission on Human Rights.
The Rome Statute has therefore come down against the death penalty. This approach is not entirely consistent with Jamaican law, for, as is well-known, the Offences against the Person Act in this country retains the penalty of execution for persons guilty of capital murder. It is probably also at variance with majority sentiment in Jamaica at this time, although recent statistics on this point are not easily available.
The divergence between the Court and Jamaican law should not, however, stand as a bar to Jamaica's ratification of the Rome Statute. As was noted last week, the Rome Statute relies on the concept of complementarity, which means in effect that Jamaica would retain the right to try and punish individuals for genocide, war crimes and crimes against humanity. Thus, in the event that the Jamaican courts find an individual guilty of capital murder, that individual may still be executed under the local law.
The non-death penalty approach within the International Criminal Court would apply only in respect of persons surrendered by Jamaica to the Court. In other words, the non-death penalty rule does not necessarily undermine the approach still taken by Jamaica to the ultimate sanction.
DOUBLE JEOPARDY
The second important technical consideration that bears attention concerns double jeopardy. In brief, the law in Jamaica (and in most other countries) does not allow the Jamaican courts to try an individual more than once for the same alleged crime. This rule -- sometimes referred to as the rule against double jeopardy -- is set out in Section 20(8) of the Jamaican Constitution, and is meant to provide citizens with protection from State abuse. Double jeopardy does not, however, prevent a person from being subject to the appellate process in Jamaica.
Suppose, now, that a person is tried by the Jamaican courts for, say, a war crime, and is found to be not guilty. Suppose also that the prosecutor for the International Criminal Court is convinced that the Jamaican authorities were not sufficiently zealous in their prosecution of the accused, and seeks to have the accused surrendered to the jurisdiction of the International Criminal Court.
On one view, the Jamaican authorities would be duty-bound, by virtue of the Rome Statute to surrender the Jamaican. But, on another reading, any surrender would violate the constitutional rule against double jeopardy. This technical point may bear further scrutiny by legal experts; in all likelihood, however, Jamaica's decision whether or not to ratify the Rome Statute shall not turn on the application of the double jeopardy rule.
SUPPORT
Various political factors also point in favour of Jamaica's ratification of the Rome Statute. Jamaica has signed the treaty, a fact which is sometimes read as a signal of intention to ratify at a later stage. And, to reinforce that perception, the Attorney General has publicly indicated that the country intends to ratify the Rome Statute, while Senator Johnson of the JLP has spoken strongly in favour of the Court.
Moreover, various Caribbean States, including Trinidad and Tobago (which played an instrumental part in bringing the Rome Statute into port), have already ratified the treaty. This, plus the fact that over 90 other countries are already on board, points towards ratification on the part of Jamaica.
There really, then, is only one significant political issue that may prompt Jamaica to reserve its position with respect to the Rome Statute, namely, the perspective of the United States of America. More specifically, the United States has taken the view that the Rome Statute could bring about politically motivated prosecutions against Americans at home and abroad; and, as a result, the Bush Administration has indicated in unequivocal terms that it opposes the International Criminal Court, as currently structured.
In keeping with this perspective, the United States has also promoted 'Article 98' agreements under which countries may promise the United States they will not surrender American soldiers and employees of the United States military to the International Criminal Court. These Article 98 agreements have stimulated a storm of controversy. For the moment, though, it may be sufficient to note that, technically, Jamaica could ratify the Rome Statute and enter into an Article 98 agreement with the United States of America.
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.
