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Creating 21st Century Global Governance Institutions: Can the International
Criminal Court Serve as a Repeatable Example?
Gerhard Labuschagne
There is a tide in the affairs of men…… On such a full sea are we now afloat, And
we must take the current when it serves, Or lose our ventures.1
Introduction
When Shakespeare used the character Brutus to state this truism, he obviously did
not have in mind an institution named the International Criminal Court. Nor were
aspects such as “global governance”, “post-Westphalian world order” or
“humanitarian law” part of his context. Despite this, the validity of Brutus’s words,
when applied to 21st century global institutions, is obvious for anyone dealing with a
globalized world.
Globalization, which has become an overarching characteristic of 21st century world
politics, is requiring the adaptation of almost all institutions which the world needs
(has at its disposal) to function. Stated differently, there is an adaptation demand
tide. Coupled to this, there is the example of the formation of the International
Criminal Court. In a relative effective manner, the world used the favourable post-
Cold War climate to deal with the long outstanding issue of an international human
rights regime. This development gives rise to the question: “Is the formation of the
ICC an indication of a new tide in world affairs, in that it offers an indication of how
the most pressing world problems can be institutionally handled?”
However, there is always the possibility to mistake a tide for an isolated rapid. The
circumstances surrounding the specific area of international human rights, as well as
the content of the sub-issues of this area, have formed a favourable action climate at
the change of the 20th and 21st centuries. This raises the question of whether the
formation of the ICC has been a unique development in the institutional structure of
world politics. Stated differently: “Can the formation of the ICC serve as a repeatable
example in world politics?”
The main aim of this paper is to look at aspects from the formation and nature of the
ICC, in order to reflect on the institutionalised situation of a globalized world. As will
be argued in the paper, the ICC can be regarded as a relatively successful response
to a pressing need in global governance institutionalization. In this process, a
number of aspects from the main IPSA-conference theme will be touched on, such
as the role of non-state actors, the sovereignty of states, and global governance. It
is an objective of this paper to link this discussion of the ICC to the main conference
theme. Furthermore, in order to contribute to the focus of this session
1 Shakespeare, William. Julius Caesar. Act 4, scene3, 218 and 222-224.
(“understanding institutions in the 21st century”), attention will be given to the ICC as
a contemporary international institution, to its effect on the position of the state vis a
vis global governance and politics, and to the nature of global governance itself.
A study as outlined in the previous paragraph necessarily confronts the observer
with the applicability of the theoretical basis of the political sciences in general, and
International Relations in particular. Depending on the theory or theories chosen,
the question contained in the title to this paper can be answered in a number of
different, and even conflicting, ways.2 The vastness of this theoretical basis prevents
a full scale use of theories to analyse the question. Thus only two broad theories,
realism and constructivism, will be used to illustrate how theoretical assumptions
determine our understanding of the situation under discussion.
Central issue
The 21st century, up till now, has proved global governance to be one of the most
vital, but also one of the most difficult problems, facing the world. The contemporary
world is faced by problems outstripping the ability of its regulating system.
Changing power patterns, and problems pertaining to inter alia finance, trade, health
and the environment, are not dealt with effectively by global governance institutions.
The central reason3 why the International Criminal Court is of importance in this
discussion is its situation vis a vis the state system. What is at stake here is the
following: There is wide spread perception that the state system, characterising the
Wesphalian order, is at the base of a failure to protect human rights globally. Within
this system, human rights have been regarded as a purely domestic issue.
According to the principle of state sovereignty, states have supreme authority over
their citizens. Thus, according to the Westphalian world order, outside intervention
for whatever reason, and thus also for violation of universal human rights, cannot be
substantiated. Were sovereign states in the habit of protecting human rights and
addressing the violations thereof, this structure probably would not have caused
problems. However, as proven time and again through history, this is wishful
thinking.
The formation of the International Criminal Court is often regarded as a rectification
of the world order’s inability to uphold international humanitarian law. The Rome
Statute, in essence, is an international institutionalization of humanitarian law.
Furthermore, it creates the possibility of jurisdiction, pending the willingness or ability
of states to honour their obligations, concerning the protection of human rights (in
this case protection against genocide, crimes against humanity, and crimes of
aggression). The ICC can thus be regarded as a mechanism, available to the world
community, to overcome the failure of the Westphalian state system (at least as far
as the protection of human rights is concerned).
2 For an example of this situation, see Leonard, E.C. The Onset of Global Governance, especially pp. 107-160.
3 Based on the discussion by Leonard, E.C., op. cit., p.49.
The key question, arising from the above discussion, is whether this situation can
also be extended to cover other issue areas important to the 21st century world
order. Stated differently, is there something concerning humanitarian protection
which makes it an unique issue area, or can the measures taken to deal with it serve
as an example for other pressing world issues? In other words, is the “overcoming
of the state system”, claimed to be so central to the “success” of the ICC formation,
also a prerequisite for the institutional solving of other world problems of the 21st
century? The problem which thus arises is: can effective 21st century global
governance institutional system be formed concurrent with the retainment of state
sovereignty? Keeping in mind that this problem can be overstated, it is clear that a
workable modus vivendi between state sovereignty and effective global governance
is needed.
Aim
The main aim of this paper is to investigate whether the formation of the International
Criminal Court (ICC) can shed some light on this question. It is proposed by this
paper that the formation of the ICC can serve as an example of how an institution,
compatible with the above requirement, can be formed. Formulated in terms of the
metaphorical language used in the introduction to this paper an answer is sought to
the following question: “can the formation of the ICC be regarded as the beginning of
a tide in the creation of a 21st century global institutional system, or has it been an
one-time rapid, being rather the product of the nature of its issue area in world
politics?”
Main Instances in the Formation History of the International Criminal Court 4
The run-up to the formation of the ICC can be traced back to the Paris Peace
Conference (end of World War I), when provision was made for the establishment of
an international criminal court to judge political leaders accused of war crimes.
However, no such court was established. In 1937, under the auspices of the
League of Nations, the issue was raised again – again without any practical result.
As a result of the atrocities during World War II, the need for a permanent
international criminal court resurfaced. In 1948, the General Assembly of the United
Nations requested the International Law Commission to attend to the matter. Two
preliminary statutes were drafted. However, the plans soon proved to be politically
unrealistic as a result of the unaccommodating circumstances of the Cold War.
Despite isolated voices in the meantime, it was not until 1989 that the idea of a
permanent international criminal court really resurfaced. A proposal was made for
such a court to deal with the international drug trade. Almost simultaneously, the
need for a permanent international criminal court was emphasised by the
4 Based on the historical review of the formation of the ICC as provided by Leonard, E.C. , op. cit., pp.17-43.
international decision to try war crimes in (the former) Yugoslavia, as well as in
Rwanda, by means of ad hoc tribunals.
In 1998, after a period of discussions and negotiations, the General Assembly of the
UN convened the Rome Conference. For the first time since the Second World
War, the international society seemed ripe for the establishment of a permanent
structure to deal with international justice. This resulted in the adoption of the Rome
Statute of the International Court of Justice. 120 of the participating states voted in
favour, 21 abstained and 7 voted against (China, Iraq, Israel, Libya, Qatar, United
States, and Yemen).
In April 2002, with the number of ratifying countries reaching sixty, the Rome Statute
became a binding international treaty, and a functioning treaty from July 2002
onwards. Other important dates during the development of the ICC were the
following: February 2003 - the election of the first bench of eighteen judges; March
2003 – the inaugural session; July 2005 the issuing of the first court warrants; 2006 -
the start of the first pre-trail hearings; June 2010 – amendments made to the Rome
Statute (Review Conference, Kampala, Uganda); 2012 – first conviction and
sentence.
State Sovereignty and the International Criminal Court5
The creation of the ICC can be regarded as a situation in which a large majority of
states have committed themselves to an unprecedented level of international/global
scrutiny and accountability. In this process their sovereignty as well as autonomy is
challenged.6 For a number of states the possible intrusion in to their autonomy to
make choices (in this regard about the extent they are willing to comply with the
standards of international criminal justice as embodied in the ICC) has been
unacceptable. For the majority, however, their compliance with the provisions of the
Rome Statute (the founding treaty of the ICC) indicates an important shift in
international/global politics.7
Given the specific focus of this paper, as well as limited space and time, it is
impossible to provide a full scale discussion of all possibly relevant aspects in the
formation of the ICC. In this discussion the emphasis is on the formation of a global
institution (the ICC) being capable of countering the ability of states to use their claim
to autonomy (as well as sovereignty) in order to frustrate global aspirations.
The ICC is a permanent tribunal with jurisdiction to prosecute individuals for four
groups of crimes, i.e. genocide, crimes against humanity, war crimes and the crime
of aggression (no jurisdiction, however, over the last one until 1917). International
5 Based on Jensen, R. Globalisation and the International Criminal Court: Accountability and the New
Conception of State. IN Dekker, I. & Werner, W.G. Governance and International Legal Theory. pp.159-183. 6 Ibid., p. 183.
7 Ibid.
law has long regarded these crimes to warrant universal condemnation. It is
regarded to be in the interest of all states to ensure that perpetrators are brought to
justice.8 In principal, all states can exercise jurisdiction over the commission of
these crimes. Many are also internationally obliged (as a result of agreements) to
prosecute offenders. Despite this, historically states tend to shy away from such
prosecution. Efforts to adhere states to their obligations tended to be frustrated
because of a tendency (and ability) by states to invoke non-intervention, autonomy
and sovereignty. Jurisdiction and accountability over perpetrators of these crimes
thus depend on a credible ability to overcome this tendency by states.9
The principle of complementarity (see art.17 of Rome Statute) provides a possibility
of trumping such state behaviour. According to the complementarity principle, the
ICC is intended as a court of last appeal. The ICC is only to intervene (investigate
and prosecute) where and when the courts of states have failed (being unwilling or
unable) to do so. Important in this connection are the provisions that the ICC may
probe the soundness of reason(s) offered for unresponsiveness by states to
prosecute and the nature of court proceedings conducted by states. In the case of a
state being unable to investigate, the ICC may decide whether such investigation
should be conducted by the ICC itself.
The above stipulations obviously constitute a compromise. On the one hand there is
a need to prevent states from blocking uncomfortable external investigation into the
conduct of their citizens. On the other hand there is the need to uphold state
sovereignty by defending state’s rights to uphold their own investigating and
prosecuting powers.
The (possible) frustration of state sovereignty and autonomy is linked directly to the
provisions of the treaty (art. 12) dealing with the territorial jurisdiction of the ICC. The
jurisdiction of the ICC is limited to cases where an accused is a national of a state
party, or where the crime was committed on the territory of a state party, or where
the situation is referred to the ICC by the UN Security Council. This situation creates
the possibility that the ICC can investigate and prosecute a citizen of a non-party
objecting state, provided that the crime by such a citizen have been committed on
the territory of a state party. What is compromised in this case is the internal
enforcement of law, traditionally being regarded as a core attribute of state
sovereignty. This aspect has been one of the important controversies surrounding
the ICC.
There is a tendency to regard the creation of the ICC not only as an intrusion into
state sovereignty, but as the erosion of state sovereignty, and even of the
Westphalian order, as such. Such an interpretation could suggest that the creation
of the ICC indicates a step towards “global government”. However, the feature
which allows states the first opportunity to investigate and prosecute relevant
8 Ibid., p. 178.
9 Ibid., p.179.
offences, makes such an interpretation questionable. This feature turns the ICC in
to a control mechanism, encouraging states to commit them to their own wilful
ending of impunity by perpetrators of these crimes. Rather than being an indication
of “global government”, the ICC thus represents features of broader “global
governance”.10
The role of non-governmental organisations (NGOs) in the creation of the
International Criminal Court 11
The role which NGOs played in the formation of the ICC constitutes an important
development in international law in general, and in treaty formation in particular.
Hundreds of NGOs participated in the proceedings of the Rome Conference. These
NGOs formed the so called CICC (Coalition for an ICC) and collectively they played
an important role in the formation process of the ICC. They participated in a number
of ways, inter alia by expert research, informal meetings with other (state)
representatives and circulating information. It is widely accepted that the role
performed by the CICC greatly contributed towards the approval process of the
Statute of Rome. It should also be noted that a close relationship between the ICC
and the participating NGOs has persisted from the Statute Conference onward.
The aspect of NGO participation in the Statute Conference which is the most
relevant for the purposes of this paper is how and to what extent state sovereignty
has been affected. It is important to note that traditional views on sovereignty did
not provide for participation in treaty formation by any other actors than (sovereign)
states. However, as indicated above, in the drafting of the ICC, NGOs have
performed a role that far surpassed their formal status in international law. Different
histories of the formation process seem to indicate that the driving power behind the
formation process were NGOs, rather than states. It is suggested that the NGOs
changed the climate of the entire conference and they proved NGOs to be a real
force in world politics.
(This aspect should be incorporated in the evaluation of the ICC as possible example
for constructing of broader global governance institutional system.)
Theoretical interpretation of the formation of the International Criminal Court
Given the emphasis of the Westphalian world order on the sovereignty of states, the
following question now arises: how could a large majority of the world’s sovereign
states create an institution which is (to extent explained previously) an erosion of
their sovereignty? Directly related to this is the following question: how do political 10
Ibid., p. 182. 11
Based on Witte, J.M. et.al. (eds.) Beyond Multilateralism: Global Public Policy Networks IN Pfaller, A & Lerch, M. (eds.) Challenges of Globalization. pp 109-127. See also Struet, M.J. NGO’s, the International Criminal Court, and the Politics of Writing International Law IN Dekker, I.F. & Werner, W.G. (eds.) Governance and International Legal Theory. pp 321-353.
scientists answer to a situation witch (potentially) can change the nature of the global
order?
A preliminary answer to the first question could be that the formation of the ICC is an
indication that, as a result of globalization, states are beginning to realize that their
ability to cooperate will better their own position and also that of a globalized world.
Stated differently, the promotion of the human collectivity (by combatting violation of
humanitarian law) seems to become part of the interest of a large majority of states
in the global community.
The answer to the second question is directly linked to the theory being employed by
the answering political scientist. More specifically, the view of the state premised by
the particular theory, is of importance. It is possible that each one of the number of
available (and often competing) international relations theories can contribute to a
meaningful answer. Given the time and length restrictions, only two theories will be
employed in this discussion, i.e. traditional Realism and the relatively newer
Constructivism (more specifically Relationalism as an identifiable sub approach).
These two approaches have been used with great explanatory success by Diane
Marie Amann12, and the present discussion relies largely on this contribution.
A large part of the formation procedure of the ICC is covered by the state premises
of Realism. Although this “common sense” theory of international relations has a
large number of exponents and variations, the following characteristics are probably
shared by all the exponents:13
Statism: The state is the pre-eminent actor in world politics. All other actors
are of lesser importance and thus warrant lesser attention, if at all.
“Sovereignty” represents the essence of a political community which
exercises juridical authority over its territory.
Survival: This is the primary objective of all states. This is the supreme
national interest, guiding all actions by political leadership.
Self-help: A state can rely on no other state or institution to ensure its survival.
Given these state premises, the formation of the ICC can, to a large extent, be
reported in terms of Realism. In short, all participating states, large and small, acted
in accordance with the state premises of Realism in that they regarded themselves
as the key actors in the process. Some also tried to use the process for self-
maximation by insisting on the accommodation of self-interests even by the threat (in
some instances the actual practice) of non-ratification of the ICC treaty. It has even
been claimed that the adoption of the controversial art. 12 of the treaty (the non-
consensual provision) can be explained in terms of typical Realist state premises.14
12
Amann, D.M. The international criminal court and the sovereign state. IN Dekker. I.F. & Werner, W.G. (eds.), op cit., pp. 185-212. 13
See Dunne, T. & Schmidt, B.C. Realism. IN Baylis, J. et.al. (eds.) The Globalization of World Politics. pp. 103. 14
Amann., op.cit., p. 204-205.
There is, however, an important aspect concerning the creation of the ICC which
cannot be explained in terms of the Realist state premises.15 The willingness by
such a large number of states, assenting to compromise their (traditional) power to
protect their citizens against outside prosecution and punishment, cannot be
explained in terms of self-interest. (It should further be noticed that - in terms of the
Statute of Rome - this loss of power also applies to non-consenting states).
Explaining this situation can better be done in terms of the theory of Constructivism.
Since Constructivism is a constitutive, rather than an explanatory theory (such as
Realism), it is better suited to capture the change in world politics, signalled by
compromised sovereignty as represented by the ICC. The following
characteristics/premises of Constructivism probably are the more relevant ones for
the purposes of this discussion:16
The world is made and re-made through human action.17 Ideas are treated as
structural factors and knowledge is regarded as a consequence of how actors
interpret their social reality. Social facts (sovereignty, human rights) stem from
human agreement. The origin of accepted facts is questioned and alternative routes
to alternative outcomes are investigated.18
Global change and transformation can be investigated well as a result of the
acceptance of the world as a social reality.
Diffusion (how particular models, practices, norms, strategies, beliefs are
spread) is a central theme in the study of global change.19
Institutional isomorphism (how the sharing of the same environment will, over
time, leads to resemblance) and the internationalization of norms contribute to
a growing homogeneity in world politics and the strengthening of international
community.20
Given its ideal type character, the “independent” state has never existed.21 It
is through the process of interaction that statehood is given meaning.22
Sovereignty is dependent on, and shifting with, the understandings states
share with one another.23
Although states are (remain) the most significant actors in world politics, the
role of other actors - resulting from either power concessions or power
collapse by states - should be acknowledged.24
15
Ibid., p.205. 16
See Barnett, M. Social Constructivism. IN Baylis, J. et.al. (eds.) op.cit., p. 160-173. 17
Ibid, p. 161. 18
Ibid., p.168. 19
Ibid. 20
Ibid. 21
Bordio, P. Escape social et espace symbolique. Referred to in Amann, op. cit., p.201. 22
Iibid., p. 202. 23
Ibid., p. 202. 24
Ibid.
Given these aspects, the interpretation of the formation of the ICC, based on
Constructivist characteristics and premises, can now be considered.25 New situations
lead to changing state behaviour. This is indicated by changing ways in which states
regard themselves and (eventually) changes in the collective understanding of state
identity. Examples of this can be found in the growing interdependence between
states and the rise in new non-state sources of authority in global politics. The
positive participation of the larger number of states in the formation of the ICC can
be explained only up to a certain extent in terms of the self-interests of individual
states. It seems as if this rather indicates a change in the nature of state interest
itself, in that a preferential response to the needs and claims of the human
community is regarded as a (new) interest of individual states. The interest
specifically carried by the formation of the ICC is the promotion of the human
community by combating atrocity. Stated differently, this interest represents a new
understanding of the role of the state in international crimes. A Constructivist
interpretation of the formation of the ICC thus seem to indicate that the “international
community had succeeded in constructing a counterbalance to state power”.26
Summary and Conclusion
This paper is built around the formation of the International Criminal Court in order to
reflect on the institutional situation of a globalized world. The main issue has been
identified as the tension between state sovereignty and an effectively functioning
global institutional order. This is well illustrated by the discussion of the ICC as an
attempt to institutionalize the global protection of human rights. In this process a
number of important aspects concerning state sovereignty have been raised. It has
been discussed how specific stipulations of the Rome Convention are eroding state
sovereignty.
The question is then asked: how can Political Scientist try to explain the situation that
states seem to forfeit (some aspects) of their sovereignty in order to create effective
global governance. Two theories of International Relations, Realism and
Constructivism, are used to provide a possible answer.
Realism is found unable to explain the willingness of the greater majority of states to
act in a greater interest than their immediate own. However, the emphasis of
Realism on the political nature of global governance should be heeded. Stated
differently, the nature of global governance institutionalism will most likely remain (a
la Realism) a political project and process.
Constructivism seems to indicate that the formation of the ICC is indicative of a
change in the nature of state interest itself. If this is the situation, the formation of
the ICC can serve as an important example for the other aspects of global
government also in need of adaptation. If so, the formation of the ICC can indeed
25
Ibid. pp. 206-210. 26
Ibid. p. 212.
serve as a repeatable example in the formation of other global governance
institutions, thus becoming part of a tide instead of an isolated rapid.
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