The practice of the International Criminal Court (ICC) today still receives wide attention at the international level, what is caused by disputes on the question of efficiency of international criminal law in general. In order to give the answer and appropriate recommendations on this question this article identifies the basic goals of international criminal law; contains consideration of the positions of disputing parties from two central aspects of a dispute: legal and political aspects. The review of the legal aspect is based on estimating arguments and counter-arguments about the legal obstacles to accession to the ICC. The consideration of political aspect mainly includes the evaluation of the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICC, because of a dispute on the political impartiality of these courts. The author focused mainly on assessing the position of Russian jurists. The last part of the work presents the recommendations on the dispute and briefly summarizes the considered issues.
Keywords: International Criminal Law, International Criminal Court, International Criminal Tribunal for the former Yugoslavia，Rome Statute，Russia
Introduction
Over the past half-century, the international community set up a variety of international and regional human rights protection systems, but millions of people still continue to be victims of genocide, war crimes and crimes against humanity. Only a few of those responsible for such crimes are brought to justice in their own countries, so most of the crimes are committed in the belief that justice will be avoided. The international community has long sought to create a permanent international criminal court, but due to various disagreements, this question has been postponed for a long time. In 1998 the Rome Statute established the International Criminal Court (ICC), the permanent judicial body, which has been part of the global justice system since 2002. It is also important to mention several ad hoc tribunals, such as The International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone（SCSL）and the Special Tribunal for Lebanon (STL). But in this article, the author wishes to dwell in greater detail on the activities of the ICC and the ICTY. This year Serbia marked the 20th anniversary of the NATO bombing of the former Yugoslavia which lasted for 11 weeks without breaks. In this regard, despite the ICTY's closure in 2017, the author considers it important to look into the practice of this Tribunal.
Before consideration of the positions of disputing parties, it is necessary to identify the basic goals of international criminal law used to justify its creation and continued existence. The four most popularly accepted purposes of international criminal law are: deterrence, retribution, condemnation, and reconciliation (Choi 2014). In theory, the goals described above are logically justified and clear, and the necessity of their achievement is irrefutable. However, the question of identification of goals in theory and the question of their achievement in practice are two absolutely different questions. There are disputes in the international scientific community and on the intergovernmental level on the question of efficiency of international criminal law and achievement of its original goals. The key point of this dispute lies in the activity and practice of the ICC and ad hoc tribunals, such as the ICTY.
- Legal arguments against the International Criminal Court
One of the problems, which does not allow the ICC to fully carry out its activities is connected with the incorporation of the Rome Statute and the implementation of its provisions in the current Constitutions. About 70 member-states of The United Nations, including the United States, China and Russia still have not joined the International Criminal Court.
Russia is one of the countries that refused to become a member of the International Criminal Court. The main reason lies in the fact that some of the articles of the Rome Statute contradict the Constitution of the Russian Federation and the fundamental international legal instruments. According to paragraph 1 of article 61 of the Constitution, a citizen of the Russian Federation cannot be deported from the Russian Federation or extradited to another state [12]. Taking into account the constitutional and legal meaning of the concepts of expulsion and extradition, ratification of the ICC Statute by Russia requires the prior amendment to this article. Moreover, this prohibition is enshrined in Chapter 2 of the Russian Constitution, which means that such amendments are impossible without the adoption of a new Constitution.
Under the «Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents», a Head of the state is under international protection, whenever he or she is in the territory of a foreign state. At the same time, the Rome Statute in Article 27 establishes the irrelevance of reference to the official position of the accused, which involves the application of the Statute for the Heads of States and Government, members of the government and parliament.
At the same time, the Rome Statute of the ICC in this article conflicts with article 91 and Article 98 of the Russian Constitution, which guarantee the inviolability of the President, of the members Federation Council and the State Duma [13]. The exceptions to the “non bis in idem” principle (the prohibition to judge twice for the same crime), which are enshrined in paragraph 3 of article 20 of the Rome Statute contradict article 50 of the Constitution, which does not allow for any exceptions to this principle [14].
In conclusion, realists and supporters of non-alignment of Russia to the ICC point out that the analysis of the Statutes and practice of existing international courts shows that the unconditional recognition of their jurisdiction almost always means not only a legal conflict with the Basic Law of the country concerned but also the rejection of the use of the most important principles of the Basic Law. That is the voluntary withdrawal of the important elements of the national legal sovereignty in favour of the International Court. Such an approach of universalization of international criminal law seems to be unacceptable for many countries, including Russia. Because that leads to the undermining of the foundations of International law — the principle of the sovereignty of the states and the principle of the creation of the United Nations as an association, but not a withdrawal of sovereignty (Zorkin 2016).
- Legal arguments in support of the International Criminal Court
Turning to the counter-argument to the legal obstacles to accession to the International Criminal Court, first of all, it is necessary to point out that the compromise was reflected in the final version of the Rome Statute, which was aimed to eliminate possible conflicts of national law and the provisions of the Rome Statute. This solution consists in the fact that article 102 differentiates the concept of «extradition» and «surrender». «Extradition» means delivery of a person by one state to another under the provisions of the international treaty, convention or national legislation regulations. «Surrender» means the delivering of a person by a state to the Court in accordance with the Rome Statute of the ICC (Bohush, Trikoz 2010, 38). With this in mind, each state should independently evaluate the necessity for changes in their constitutional acts.
The second factor that complicates the situation — is an issue of immunity of senior government officials and parliamentarians. Waiver of immunity is required according to the Rome Statute in order to ensure the smooth transfer of these persons to the jurisdiction of the International Criminal Court. Some states use the formal interpretation in accordance with the goals of the ICC. That is, to interpret constitutional provisions as providing immunity by virtue of official status only in relation to national courts rather than international. In this case, it will not be necessary to begin a laborious process of amending the Constitution. Using such techniques, Spain, Italy, Norway and Switzerland evade making any changes to their basic laws during the process of ratification.
The Swiss Federal Council has established that Article 25 of the Constitution does not create any obstacle to the possible surrender of Swiss citizens of the ICC. Taking into account the arguments of the Federal Council, the Swiss Parliament has decided that the amendments to the Constitution are not required. In Spain, the State Council also has considered that the obvious contradiction between the Constitution and the Statute of the ICC can be resolved by way of interpretation, and has decided not to amend the Constitution. Germany has chosen a different way. Here, the Bill on Amendments to the Constitution was adopted before the ratification of the ICC Statute. In derogation from the principle of non-extradition of its own citizens, the possibility of extradition of Germans in the member states of the European Union or surrender to the ICC was provided.
Another variant of removing contradictions between the Constitution and the Statute of the ICC can be reached by adopting a single amendment. Such an approach has been adopted by France, where the Constitution was amended (article 53–2) according to which «the Republic recognizes the jurisdiction of the International criminal court in accordance with the signed agreement». Implicitly, this means recognition of the priority of the norms of the ICC Statute on constitutional provisions (Duffy 2000, 6).
It appears that Russia, as the country with an extremely complex process of amending the Constitution, can apply the experience of States that have successfully resolved described legal collisions. Summarizing the existing international experience, two basic ways to solve these problems can be offered. The first way lies in amendments to the Constitution. For example, such an approach was applied, in France, Brazil, Belgium, Germany.
Interestingly, in the majority of the countries, the changes are related only to procedural aspects. They did not affect the actual contradictions between the Constitution and the Rome Statute of the ICC but merely clarified several provisions. The majority of states that have ratified the ICC Statute (Eastern Europe, Latin America) chose the different way — the way of interpretation of the current Constitution in accordance with the provisions of the Rome Statute. Consistent with international law interpretation has long been known in legal theory and has been demanded by the practice of constitutional justice (Tuzmukhamedov 2002, 168). Such kind of interpretation of the national legislation wide provides opportunities particularly to the states, enshrining the priority of international law over domestic law at the constitutional level (in particular the Russian Federation).
Supporters of the ICC do not agree with the point of view that the International Criminal Court infringes on the sovereignty of states. One of the «Founding Fathers» of international criminal law Professor M. Cherif Bassiouni emphasized that " [the ICC] is not a supranational body, it is an international body that is identical to other existing ones. The ICC cannot larger than any state in the framework of existing international law (Cryer 2006, 984). Philippe, Mark and Philippe Sands (2003, 181) suggest that the ICC is nothing more than an extension of national jurisdiction. Therefore, the ICC does not affect national sovereignty». Russian professor I. Blishenko supposes, that the principle of sovereignty does not contradict the idea of the creation of the ICC, but also plays the role of the prerequisite for the implementation of claims of the international community to a state. Therefore, the proper organized ICC is intended to be a safeguard against undue interference and violations of the sovereignty of states (Blishenko, Fisenko 1994, 48).
Finally, supporters of the ICC believe, that the Court not only does not contradict the principle of state sovereignty but also becomes its important guarantee. Firstly, the creation of the ICC on the basis of an international agreement is the implementation by states of their sovereign rights. Secondly, the ICC defends the States against the most serious violations of their sovereignty (the crime of aggression). Thirdly, the International Criminal Court, acting as an additional level of justice, guarantees states the opportunity to exercise their sovereign right to prosecute international crimes in the case of impossibility of implementation of the national jurisdiction.
- Political arguments against international criminal law
One of the other reasons why the Rome Statute has not been signed or ratified by many countries including the Russian Federation can be connected with a certain distrust of the current system of international criminal law. These countries believe that the ICC has not still reached goals used to justify its creation. Non-aligned countries are unable to accept the precedents of international criminal justice going beyond the limits of its sovereignty and its jurisdiction. Moreover, the argument of possible politicization of the Court can be put forward, because the International Criminal Court is entitled in its own discretion to decide what state and in what cases demonstrates an unwillingness or inability to investigate crimes and to prosecute suspects (Zorkin 2015). As a result, the Court in its discretion determines the legitimacy of international interference in domestic affairs.
Some decisions of international courts are taken on the background of powerful information war against political leaders of one of the parties to the conflict, with a distinct preliminary accusatory bias in respect of that party as well as with the use of falsified evidence, that is, in the spirit of the policy of «double standards». In this respect, the particular concern is caused by the practice of international courts of the implementation of the legal novels, which go beyond the international law and receive legitimation in the decisions of these courts as a precedent (Sidorov 2016, 114). That raises a reasonable suspicion that external forces, having an opportunity of hidden pressure on the courts, will be able to use such practice in order to remove unwanted state leaders from the political scene or make internal changes in «interfering» countries.
The above point of view is often supported by examples from the practice of the International Criminal Tribunal for the former Yugoslavia. The Tribunal is often criticized, especially by the Russian and Serbian authorities for being biased, what results in a much larger number of convicted Serbs and stricter sentences against them. 60 % of the defendants were Serbs and Montenegrins. Almost all military and civilian command of Serbia was imprisoned in Hague. Croats accounted for only 18 % of all the defendants, but all Croatian generals were acquitted. As a result, according to the judges' opinion, all the of crimes during the 4-year war were committed solely by Serbs. That fact makes the conflict «the struggle between good and evil». The justification of war crimes committed by Croats injured consciousness of the Serbian nation.
Sometimes, the Tribunal reached the point of absurdity. In 1995, Nebojsa Evrich, Serbian reporter jokingly told American reporters that Gruban Malic — one of the most brutal war criminals, suspected of mass rape of Muslim women. According to Avrich, all his «crimes» Malich committed in the Omarska camp. The story of Malich immediately caused a great public resonance: the judge of the International Criminal Tribunal for the former Yugoslavia Richard Goldstone, a professor of international criminal law at Harvard University and author of the UN Council report about the crimes of the Israeli army during Operation «Cast Lead», immediately included Malich in the number of wanted Serbian war criminals. Later it became clear that Gruban Malic is a fictional character in the story called «The Hero on a Donkey or The Time of Shame» and written by Miodrag Bulatovic. Deception revealed immediately, but Malic was removed from the list of suspects only in 1998.
In 2005, the ICTY has charged the Prime Minister of Kosovo Ramush Haradinaj. He was accused of conducting operations directed on forcible evictions of Serbs and Romany people, as well as on reprisals against Romany people and ethnic Albanians suspected of collaboration with the Serb forces. The Tribunal pronounced the verdict of not guilty to Ramush Haradinaj on all 37 points of accusations.
Earlier in May 1999, the International Criminal Tribunal for the former Yugoslavia brought charges against the former president of Yugoslavia Slobodan Milosevic for war crimes in Kosovo in 1999. Milosevic and four senior Yugoslav leaders were accused of five counts, qualified as crimes against humanity: murder, persecution on political, racial and religious grounds, deportation and one item that was qualified as a violation of the laws or customs of war. During the protection part of the process against Milosevic were presented strong evidence that the reason of mass exodus of the population from Kosovo (one of the main charges against Milosevic) was not connected with the orders of the authorities of the Federal Republic Yugoslavia and the real reason was in the bombings of NATO. The provided materials not just completely confuted the indictment against Milosevic, but also showed the involvement of the Tribunal in concealing the real perpetrators of the Yugoslav tragedy.
In 2006, the ICTY refused Milosevic in providing urgent medical care. Due to the deterioration of the state of health of the former president, the trial was interrupted 22 times. Milosevic petitioned for treatment in Russia, having declared that the medical measures taken at the place of arrest have not yielded the result and had exclusively superficial character. The Tribunal refused him, explaining the refusal with the fact that the link to disease is only a pretext in order to escape from the Court. However, in the similar case of Ramush Haradinaj the suspect was released from custody in three months after arrest to the native village of Glodzhane (headquarters of the Liberation Army of Kosovo) for the period before the trial begins (Bohush, Trikoz 2010, 45). Besides, in March of 2016, it became known that the International Criminal Tribunal for the former Yugoslavia, in fact, actually acquitted the former president of Yugoslavia Slobodan Milosevic, having found him not guilty of genocide in Srebrenica. At the same time, the Court did not make any official statements and the justification itself was included in the text of the verdict on another defendant — Radovan Karadzic. The Hague Tribunal found evidence against Milosevic insufficient.
The modern practice of the International Criminal Court also causes disappointment of the present Russian authorities. The reason lies in the groundlessness of a position of court on events in the Crimea and the east of Ukraine since the end of 2013. According to the ICC «Report on Preliminary Examination Activities» (2016), the ICC described Crimea as «an international armed conflict between Ukraine and the Russian Federation», the conflict in Donbass as «domestic, but with signs of international involvement». However, the Revolution of «Euromaidan» and coming to power of nationalists caused less attention. «Events on the Maidan of Independence» as calls them the ICC, are not followed by the list of possible crimes. On the contrary, the situation in Crimea and in the east of Ukraine is followed by a detailed list of probable crimes. According to the ICC Report, «since the assumption of control by the Russian Federation over the territory of Crimea, some 19,000 residents of the region have reportedly become internally displaced within mainland Ukraine. A large proportion of this number of internally displaced persons is believed to be of Crimean Tatar ethnicity. Under the application of Russian law throughout the territory, members of the Crimean Tatar population and other Muslims residents in Crimea have also reportedly been subjected to harassment or intimidation, including a variety of measures such as entry bans to the territory, house searches, and restrictions on their freedom of expression, assembly and association”. The above position is not only inconsistent with Russia's position but calls into question the Minsk agreement, which sets the goal to stop the bloodshed.
In conclusion, Russia cannot accept the situation when the ICC starts to investigate the Ukrainian crisis and Crimean return to Russia through the definitions of “internal armed conflicts”, “war crimes”, “crime of aggression”. In the conditions of “new cold war” Russia opposes the ICC's jurisdiction over war crimes committed in internal armed conflicts. All the given above examples of international criminal law in action are characterized by Russian authorities as negative and directed against the Russian Federation and allies, but not to achieving common goals of international criminal law. Therefore, in November of 2016, Russian President Vladimir Putin has signed a decree to withdraw Russia from the International Criminal Court (Baidakova 2016).
- Political arguments in support of international criminal law
Supporters of accession of Russia to the Rome Statute, on the contrary, point out that the Russian government, resolving an issue of ratification of the Statute, should understand that refusal of ratification once again put the Russian Federation out of the European family of Nations as it already was when Russia was not the member of the Council of Europe. Moreover, most of the European states, especially members of the European Union, support ratification of the Statute. Russia should not oppose United Europe, but, on the contrary, to cooperate with it. Along with a large number of the states, the idea of the ICC is supported also by a number of the influential international organizations, for instance, Amnesty International. The Organization emphasizes (2014), that “the ICC incorporates the best-evolved, most comprehensive understanding of what constitutes a fair trial. It ensures that the accused receives a public and fair hearing conducted impartially. Only the ICC presents a workable framework for the functioning of an international justice system which will affirm the basic human rights of all people of all nations and will deliver the world from a so-called war on terror which ends up producing terror of its own.” Nevertheless, in modern conditions, the position of Amnesty International seems to be too surrealistic.
In response to the realists' argument about the political inexpediency of joining the International Criminal Court, the ICC proponents point out, that Russia can get certain benefits from joining the ICC. Particularly, Russia, as well as other countries, may be interested in giving the ICC anti-terrorism mandate. Professor R. Sievert (2006, 109) suggests using the ICC as a universal court for terrorists. The need for such court is caused by the complexity of legal prosecution of members of the multinational terrorist organizations by separate jurisdictions. For example, after the act of terrorism during the Boston marathon, it has become clear that some terrorists can be potentially requested by judicial systems of both Russia and the United States. Therefore, the ICC may become the proper court for the sentencing of the terrorists. The court is beginning to move in the right direction — in August of 2016, the ICC sentenced the first Islamist rebel Al-Mahdi to nine years for destruction of Timbuktu antiquities (Sterling 2006). This case can be characterized as a positive example of international criminal law in action.
- Recommendations
No doubt, that the world community of sovereign countries needs certain universal norms of international criminal law and judicial institutions, responsible for monitoring compliance with these norms. The transfer of the function of criminal prosecution to these institutions is quite justified in case the sovereign state cannot cope with this function for some reasons and asks the international community for help. Of course, it is unacceptable to let the persons guilty of terrorism and other crimes against humanity evade responsibility. The question is to ensure these universal norms comply with a Constitution and the system of legal statutes adopted by the international community. At the same time, judicial institutes must respect the accepted universal norms. However, in modern conditions that seem to be hard to achieve and that is not only the fault of international courts.
One of the most serious problems of the international law enforcement is the fact that 10 Fundamental Principles of international law formulated in the UN Charter are not interconnected in a strict legal system, which would allow applying these principles without legal collisions. As a result, one can assume that there is nothing more important than sovereignty and territorial integrity of the state, and others that the territorial integrity and sovereignty can be neglected. Against the background of such collisions, the attempts to force through international criminal courts the «right of the strongest» became possible.
Russian professor and Chairman of the Russian Constitutional Court Valery Zorkin (2016) believes, thatin order to solve this problem, it is necessary to refer to the legal understanding of the Fundamental Principles of the UN Charter in their interconnected system integrity. Furthermore, it is necessary to give the strict legal definition of the conditions and sufficient limits of the international bodies’ intervention in the internal affairs of sovereign states. Must be identified conditions and situations when certain fundamental principles get priority. In addition, the circle of competencies of the states and supranational bodies in the sphere of international criminal law has to be codified.
- Conclusion
The world situation with the accession to the ICC can be called a «litmus test» to identify the level of confidence in the international criminal law. As long as there is a dispute between opponents and supporters of joining the ICC, remain aligned and non-aligned with the ICC countries, it seems to be hard to answer unambiguously the question whether the International Criminal Court has achieved the goals of its creation and continued existence. On the one hand, the position of one party is based on the arguments about the violation by the Court of the principle of state sovereignty, the complexity of implementation in the national legislation of the provisions of the Rome Statute, politicization and the partiality of international courts (ICTY; ICC). After consideration of the first position, it can be said that non-aligned countries believe that the existing system of international criminal law has not achieved goals used to justify its creation and continued existence. On the other hand, the opponents, in turn, give examples of successful implementation and execution of the Rome Statute. It is emphasized that the ICC does not affect state sovereignty. Moreover, political advantages from accession, potential opportunities of the ICC for the prosecution of the international terrorists are given. Thus, arguments and counter-arguments of both sides have their reasons and deserve attention. The author submits it would be incorrect to conclude that the position of any of the parties is correct or wrong, or that the international criminal law to the full extent achieved or did not achieve its goals. Therefore, the author sticks to a more reserved and compromise position on this question. Instead of further disputes, it is more important to refer to the legal understanding of the conceptual issues of international law. Without that, we will not be able to build an effective and credible system of international criminal law institutions.
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