March 7, 2003
The establishment of an international legal forum, with competence over the most serious crimes, which affect the whole of mankind, is certainly progress. How could one not be pleased that war crimes considered by everyone as unpardonable be now judged and the perpetrators punished? Nevertheless such a court must comply with certain minimum criteria: its competence must be properly defined and it must display due democratic legitimacy through the fair representation of its constituency.
Article 5 of the ICC Rome Statute of 1998 accords the Court competence to judge four categories of crime: the crime of genocide; crimes against humanity; war crimes and the crime of aggression. The Statute goes on to define war crimes as ‘Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.' In my opinion this definition is far too general which lays it open to ridicule as a legal provision. Even a military operation that causes no fatality whatsoever comes within its scope: mere civilian injuries or damage to goods are sufficient.
The inclusion in the above grounds of environmental concerns is the most dangerous of all. When you consider the bitter divisions over environmental questions, Article 8 appears to invest the judges with a power which borders upon the arbitrary.
Law is inevitably abstract but it must also be practical and relate to particular situations or conditions. When it does not satisfy this latter criteria, then it is left to the courts and tribunals to complete it so that it does. It is true that such a situation worries jurists less in Common Law countries than in Civil Law ones, but in this case the personal choices and convictions of the judges should be taken into consideration when they are nominated. It is a basic requirement of any democracy that the composition of a law-making body reflects, at least to an appreciable extent, the different opinions of the people subject to its jurisdiction.
This question of democratic legitimacy applies just as much to international institutions, especially those, like the European institutions, that have legislative powers. Such institutions derive their legitimacy from their being the normative manifestation of the States that constituted them: States which are themselves democratically elected.
The ICC is both a jurisdiction that is obliged, through the generality of its Statute, to have a law-making function and an international institution. For this reason the question of its democratic legitimacy and representative nature is called doubly into question. However the selection of the first eighteen judges shows a total absence of any attempt at being truly representative. How can the ICC lay claim even to a modicum of democratic legitimacy when every last one of these judges shares the same political complexion?
The ICC web site displays the attitude and opinions of the judges over some twenty subjects which had been submitted to them. From these it may be readily ascertained that the composition of the ICC reflects the rainbow of so-called left wing opinion. Of course you can wrangle over the exact angle of one or other of these judges, digging up this or that opinion which displays some faint and fleeting, half-ashamed empathy for capitalism, the United States or Israel, so let us put the question like this: how many of these judges would describe themselves as Republicans in the US sense, or Conservatives in the British sense, or simply as from the right - as more than half the French and US populations would? The answer is self-evident.
Clearly, therefore, the composition of the ICC does not reflect the different shades of public opinion. How did this come about? Could it be simple coincidence? If it were, it would be remarkable. Let us look then at the selection procedure. Apart from their curricula vitae the candidates had to reply to various questions, such as "Are there situations or cases in the past where you believe you have applied a gender perspective, i.e. inquired into the ways in which men and women were differently impacted? If so, to what effect?" or " Have you served on the staff or board of directors of human rights or international humanitarian law organizations?" From the moment that the selection process is biased towards those who can answer these questions affirmatively, then the political hue of those elected should offer no surprise.
Nobody is questioning the quality of those elected as jurists. What is in question is the absence of proper representation of centrist and conservative political and moral conviction. The monochrome political outlook of the Court is even more to be regretted given the generosity of the terms of its Statute, which bestows a veritable power on its judges not only to apply existing international law, but to create new law. (Even within its remit of application there is a wide scope for different interpretation, as the House of Lords decision in the Pinochet case showed). How, after all, can a left-wing coterie create anything but left-wing law?
Legal fair play does not seem moreover to have prevailed during the selection process. It was the Wall Street Journal which drew attention to the first faux pas of the ICC - the way in which the first eighteen judges, whose remarkable political resemblance we have just noted, were appointed. The 1998 Rome Statute requires that judges be nominated by a two-thirds majority of the States present and voting. All votes, other than abstentions, are to be taken into account, whether or not properly cast. Finding that for three of the judges such a majority could not be found, the representatives of the States only took into account the votes validly cast, ignoring the invalidly cast votes. This may seem mere legal quibbling to someone who is not a jurist, and as such not important, but it is this type of nuance which makes law what it is, and it cannot yield its benefits if its small print is ignored. One thing is beyond dispute - this flagrant breach of the 1998 Statute tarnishes in advance with irregularity all subsequent decisions of the ICC with which the three judges in question are involved.
More Information on the ICC
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