Abstract
By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds
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Notes
See generally Hirst (2003, chs. 1, 5).
Though admittedly some states give a wider interpretation to these principles than other states are willing to accept as legitimate.
Articles 6–8 ICCSt.
Luban (2009, p. 572).
Id, at 579.
Id, at 579. ICTY refers to the International Criminal Tribunal for the Former Yugoslavia and ICTR refers to the International Criminal Tribunal for Rwanda.
Id, at 580.
This corresponds to the first two of the three claims identified by Antony Duff as necessary to morally justify the conviction of the wrong doer: First, it must uphold the principle of legality, which demands that the conduct constituting the alleged crime was proscribed by a law that binds the defendant. Second, it must have jurisdiction. Third, it must be shown that the criminal process and the finding of guilt have been proved through a fair process, which respected the demands of natural justice (Duff (2009)). I will come back to the third claim of legality later in this article.
Admittedly, it is not completely clear to me whether Luban’s claim of ‘legitimacy through fairness’ is a claim concerning jurisdictional authority or decisional authority. In some places he seems to refer to legitimacy in the sense of jurisdictional authority whilst in others, he can be read as referring to decisional authority.
Luban, using the terminology of legitimacy, seems to be arguing for jurisdictional authority in a number of places, such as on p. 279 when he says: ‘My own view is that the legitimacy of international tribunals comes not from the shaky political authority that creates them, but from the manifested fairness of their procedures and punishments.’
The US makes a similar claim to justify its stance according to which the ICC does not have jurisdiction over nationals of non-parties states without the consent of that non-party state. See United States’ State Department Fact Sheet on the International Criminal Court (2002) [http://www.ciaonet.org/casestudy/media/mur01_c.html].
Locke (1960, s. 13).
Alon Harel discussed this instrumental justification for state punishment, though he claims that this approach inevitably allows for privatization of punishment (he nevertheless ends up rejecting this position on other grounds) (Harel (2008, p. 115, 118–9)).
Harel (2008, p. 120).
Id, p 121.
Feinberg (1994).
According to Duff, the expressive account is a ‘one-way activity that requires only an audience or object’ and as such assigns only a passive role to the wrongdoer (he is the object of the trial); instead, we should be talking about a communication which is a two-ways process ‘that seeks actively to engage the other’. (2009, p. 593).
Clearly this claim requires a much more detailed discussion but as it is not necessary for current purposes I will leave it to another time.
Guidice and Schaeffer (2012, p. 237–240).
See below on p 24.
Harel (2008, p. 127).
Admittedly, each of these objections requires a fuller discussion, but for the purposes of this article it is not necessary.
Given that the US, who is making a similar claim, does not oppose delegation of power to punish altogether, and even not the more limited objection of delegation of the powers to punish to private bodies (as there are many private prisons in the US) there is reason to believe that this is the real reason behind their objection to delegation of powers to international tribunals.
Christopher McCrudden raises a similar argument in the context of the debate over the membership of the UK in the European Convention of Human Rights and its obligation to follow the judgments of the European Court of Human Rights. See his post McCrudden (2011).
Admittedly international tribunals may also conduct the trials in the state. Unfortunately, experience shows that often they are unable (due to security reasons) and/or unwilling to do so. Thus, for example, the ICTR sits in Harusha, Tanzania and not in Rwanda, while the ICC tends to have its trials at its head office in the Hague (even if Article 3(3) of the ICCSt allows it to sit elsewhere when it considers it desirable). This has been a serious and common complaint of African States (as well as scholars) against trials conducted by the ICC in Hague. The argument being that having the trial conducted in a different continent makes it inaccessible to the public and undermines the value of such trials.
This is true even among states that oppose the possibility of delegation of the power to punish to private bodies.
Examples of such treaties include: the Tokyo Convention on Offences and certain Other Acts Committed on Board Aircraft, 1963; the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971; the New York Convention Against the Taking of Hostages, 1979; the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment, 1984; the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988; the International Convention on the Suppression of Terrorist Bombings, 1998; the International Convention for the Suppression of the Financing of Terrorism, 1999; the EU Council Framework Decision of 13 June 2002 on Combating Terrorism, Art. 9(1). See also Reydams (2003, ch. 3) for a discussion of the ‘extradite or prosecute’ provisions in these treaties.
See Akande (2003, p. 623). There is some controversy in cases involving the prosecution of individuals who are nationals of non-party states by the state of custody. In such cases some academics argue that the legal basis for the prosecution is found in universal jurisdiction (see e.g. Scharf (2004, p. 99–103); Randall (1988, p. 815)). However, there is no controversy that prosecution of nationals of party states by the state of custody is based on the delegation of jurisdiction by the state of nationality.
Such agreement can be given either permanently by becoming a party to the Rome Statute (which established the ICC), or by an ad hoc acceptance of the court’s jurisdiction in a particular case. Where agreement is given the prosecutor can either accept referrals from the state or initiate his or her own investigations into allegations that a crime has been committed. ICCSt, Arts. 12–15.
ICCSt, Art. 13(b). Dan Sarooshi identifies three types of conferral of sovereign powers from states to international bodies: agency, delegation of powers and transfer of powers which are distinguished from one another based on the ability to revoke these powers, the level of control and supervision retained by the state and whether the international body has exclusive or concurrent competence. Based on this distinction, the different ways in which the ICC gains its jurisdiction may amount to different types of conferral of powers. However, as I do not think that this distinction has any practical implications for our current discussion, I use the term ‘delegation’ as a generic term to refer to conferral of powers and avoid the sub-classification. (See: Sarooshi (2005, esp. ch. 3)).
Legally, Art. 12 ICCSt allows for delegation of powers by states only in cases where the state could have acted individually on the basis of territoriality or nationality (See: Akande (2003, p. 621–2); Scharf (2004, p. 98); Danilenko (2002, p. 1874)) and the moral authority follows without any difficulties.
Duff (2009, p. 590).
Sarooshi (2000, p. 25–32).
See Akande (2003, p. 628). NB, that this claim is not unique to referrals of cases by the Security Council to the ICC and is similarly applicable to resolutions of the Security Council to establish tribunals to deal with specific conflicts.
It did, however, come up in the context of the Security Council’s decision to establish the ICTY and to prosecute nationals of the Federal Republic of Yugoslavia (since it was argued that the Federal Republic of Yugoslavia does not automatically assume the membership of the Socialist Federal Republic of Yugoslavia in the UN). For a detailed analysis see Akande (2003, p. 628–632).
These crimes have been recognised in customary international law.
An example of such an agreement was the amnesty agreed by South Africa in their Interim Constitution (Act 200 of 1993), as part of the truth and reconciliation process bringing the apartheid regime to its end. The amnesty was granted ‘in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past’. This amnesty was challenged in the South African Constitutional Court that rejected the appeal, stating that the amnesty was reached by a body that truly represented the people and was an important bridge that enabled bringing the apartheid regime to its end (see: Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015). However, where the an agreement is reached by a group that does not represent the whole society, or where it is done in order to promote the interests of a small group, then, of course, such an agreement is a failure of the state to uphold its obligations and should not be viewed as preventing the Security Council from intervening. Inevitably, the assessment as to whether the body giving a promise for amnesty is a true representative of its society has to be made on a case by case basis.
But see in this regard Rule 159 of the ICRC rules of Customary International Humanitarian Law interpreting Article 6(5) to the Additional Protocol II stating that amnesties should not be given to those suspected of war crimes. Similar position was taken by various bodies including the Security Council in Resolutions 1120 and 1312, the UN Commission on Human Rights, Resolution 2002/79. For the debate about the recognition of amnesties agreements see e.g. Orentlicher (1991); Cassel (1996); Teitel (1997); The various articles in Roht-Arriaza (1995); Dugard (1999); Ratner and Abrams (2001); Naqvi (2003); Meisenberg (2004); Sadat (2003).
Schabas, above note 38, at 279.
Note, that the Rome Statute establishing the ICC recognises this in the Preamble stating: ‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’.
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Wallerstein, S. Delegation of Powers and Authority in International Criminal Law. Criminal Law, Philosophy 9, 123–140 (2015). https://doi.org/10.1007/s11572-013-9203-3
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DOI: https://doi.org/10.1007/s11572-013-9203-3