The Factually Challenged Wall Street Journal Editorial

by Kevin Jon Heller

I really wanted to ignore the Wall Street Journal editorial that Julian mentioned yesterday, filing it in the “life is too short” category.  But I can’t help myself, because the editorial is just shockingly factually inaccurate — to say nothing of its rather curious judgment, such as the idea that Bashir “may be the only man able to guarantee… peace” in Darfur.  So without further ado…

Under international law norms, the ICC can prosecute citizens of signatory states. But it cannot prosecute citizens of nations, such as Sudan, that are not party to the ICC.

Of course it can.  Putting aside a Security Council referral, which is the real object of Rivkin and Casey’s wrath, Article 12 of the Rome Statute gives the ICC jurisdiction over crimes committed by nationals of a non-party State on the territory of a State Party.

What’s more, in 2002, the U.N.’s International Court of Justice — a separate institution from the ICC — upheld the notion that a country’s most senior officials could not be prosecuted unless it had given its consent.

No, it didn’t — not for international courts.  In paragraph 61 of its Judgment, the ICJ specifically held that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”  And it cited the ICC as an example of such a court.

At the same time, the ICC did not exist when Sudan joined the U.N. in 1956, and referrals to such an institution were hardly foreseeable.

This is my favorite claim.  As Rob Cryer points out in the comments to Julian’s post, there is no “reasonable foreseeability” test in the U.N. Charter concerning the scope of the Security Council’s Chapter VII powers.  Moreover, it is patently false to claim that it was not foreseeable in 1956 that the U.N. might refer a case to a permanent international criminal court, especially insofar as genocide is concerned. Article 6 of the 1948 Genocide Convention specifically contemplated the possibility that the crime would eventually be tried by an “international penal tribunal” with jurisdiction over nationals of States — such as the Sudan itself — that had ratified the Convention.  Moreover, when it approved the Genocide Convention in 1948, the General Assembly adopted a resolution requesting the International Law Commission to study the desirability and possibility of creating such a tribunal.  How, then, can anyone possibly argue that it was “hardly foreseeable” in 1956 that the U.N. might one day refer the national of a member State to a permanent international court?

Perhaps more to the point, Sudan has now asserted its primacy over matters involving Darfur, effectively withdrawing whatever waiver of immunity that might be implied from its accession to the charter.

I have no idea what this actually means.  If Rivkin and Casey are arguing that the UN cannot institute judicial proceedings against nationals of a State that wants to prosecute its nationals itself, they are obviously wrong — as the existence of the ICTY and ICTR demonstrates.  And if they are arguing that the ICC’s principle of complementarity now requires the Court to defer to the Sudan’s national proceedings, they are still obviously wrong: given the legal limitations on Sudanese criminal courts and the Sudanese government’s obvious unwillingness to prosecute individuals indicted by the ICC, there is no way that the Court would conclude (and it has the final say) that the complementarity principle has been satisfied.

The ICC prosecutor, who is selected by the ICC state parties and ultimately accountable to no one for his actions, has muscled his way into the negotiating room and seized the leading role.

Please.  It’s true that the Prosecutor cannot be removed from office by the Assembly of States Parties for anything short of serious misconduct, which would not include making unpopular investigative decisions.  But those investigative decisions are themselves subject to signficant procedural constraints.  The three most obvious examples: (1) only the Pre-Trial Chamber can issue an arrest warrant; (2) the Pre-Trial Chamber must hold a confirmation hearing on the charges the Prosecutor intends to bring against a suspect; and (3) the Court must always satisfy itself that a particular case is admissible, an inquiry that includes considering the gravity of the case and whether the Court must defer prosecution because a State has satisfied the principle of complementarity.

No agreement can be reached now without him.

Of course one can.  Remember Article 16 of the Rome Statute?  It would be difficult for the Security Council to defer the Prosecutor’s investigation sine die, as I have explained, but it is always possible.

International justice, especially for heads of state, works best after regime change. This was the lesson of the Nuremberg trials, of Saddam Hussein’s trial and punishment by a liberated Iraq, and of the 1990s Balkan wars — where Serbian President Slobodan Milosevic was turned over to the U.N.’s ad hoc court in The Hague after he was toppled.

That was the lesson of the Milosevic trial?  Seems like a difficult argument to make, given that the ICTY indicted Milosevic while he was still the President of the FRY.

Kind of like another Head of State much in the news lately…

http://opiniojuris.org/2008/07/23/the-factually-challenged-wall-street-journal-editorial/

5 Responses

  1. The argument that international criminal tribunals cannot prosecute nationals of non-party states is one that has been made by some American academics in the context of the ICC. There are good reasons of principle and significant practice that demonstrates that this argument is erroneous. When States sign a treaty to create an international criminal tribunal like the ICC what they are doing is transferring jurisdiction that they have to that tribunal. Since States can unilaterally exercise jurisdiction over non-nationals why can they not join up to transfer this jurisdiction to an international tribunal? In particular, it is perverse to say that with respect to internationally condemned offences which are deemed to be prejudicial to the interests of the international community, States can act individually but cannot act collectively.

    Since Sudan is not a party to the ICC statute, the particular argument made here by Rivkin & Casey is about UN Security council authority to prosecute non-nationals. I don’t recall this argument being made with respect to the ICTY at a time when States like the US and UK took the view that the Federal Republic of Yugoslavia was not a member of the UN. Those states were at that same time not only encouraging the ICTY prosecutor to charge Milosevic and his officials but even funding the ICTY to conduct investigations in relation to the FRY. Likewise, there was support from those same quarters when the Special Court for Sierra Leone indicted Charles Taylor, then President of Liberia and not a national of Sierra Leone. The Special Court was set up by treaty between the UN and Sierra Leone. Liberia is not a party to that agreement.

  2. Dapo, if an international court has no more authority or jurisdiction than the states that create it, why do we distinguish between national courts without the jurisdiction to prosecute foreign heads of state and international courts that do.  It seems that it must either be both have jurisdiction or neither do.  Or are we recognizing that international organizations (such as the ICC) are more than the sum of their parts and can exercise powers beyond those that any state party could individually exercise. 

  3. Adam,

    The reason why international tribunals can try heads of state is not that they are somehow qualitatively different from domestic courts just by virtue of being international. The ICTY and the ICTR were created by the Security Council acting under Chapter VII of the Charter. Pursuant to Article 103 of the Charter, obligations under the Charter, including UNSC resolutions, prevail over other international obligations. In other words, the UNSC has the power to remove head of state immunity.

    In the case of the ICC, its member states voluntarily waived their immunity, as is their right, under Article 27 of the Rome Statute. In the case of Bashir there is an immunity issue that was discussed a bit ago here on OJ, but the UNSC can be deemed to have removed Bashir’s immunity implicitly when it referred the Darfur situation to the ICC under Chapter VII.

    The point is that absent UNSC action and absent a state’s waiver of immunity, a head of state is entitled to immunity ratione personae even for international crimes, before any court, international or domestic. Otherwise a couple of states can just band up and create an international court that could prosecute heads of third states. That the ICC has more than a hundred states parties cannot change the fact that for non-parties the Rome Statute is res inter alios acta.

  4. On the immunity issue, given that Bashir was charged with genocide, isn’t Article IV of the Genocide Convention relevant?  It says, “Persons committing genocide … shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals.”  Sudan became a party to the Genocide Convention in 2003 (!), with no reservations.

    Likewise, Principle III of the ILC’s Principles of International Law recognized in Nuremberg says, “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.”

    –Perry.

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